Abstract
Abstract:This dissertation investigates the delictual liability of bank towards a non-customer who suffered financial loss as a result of an electronic funds transfer, specifically fraud perpetrated by a phishing scam.
For the purposes of this dissertation we are concerned with instances where banking customers fall victim to internet banking fraud, specifically phishing scams, and their funds are transferred to an account held with another bank (not their bank). In this instance, there is no contractual relationship between the victim and the beneficiary bank.
Therefore, if the victim, who is a non-customer, wants to claim from the beneficiary bank he must do so by way of an Aquillian action. To establish delictual liability, the following needs to be proven, that there was: a culpable (intentional or negligent), wrongful act which caused harm to another. This dissertation focuses mainly on elements of negligence and wrongfulness.
In a recent decision, Peterson NO and Another v Absa Bank, the court had to consider whether there was a legal duty on the beneficiary bank to prevent pure economic loss to a third party, that is, a non-customer. Essentially the court in the Peterson case, equated the relationship between an originator of a payment order and the beneficiary bank to the relationship between the owner of a cheque and the collecting bank. The court adopted the approach of the court in Indac Electronics v Volkskas Bank and found that the evidence supported the existence of a legal duty on the part of the bank to prevent pure economic loss to the non-customer by negligently opening and maintaining the bank account.
Mark Henri Pienaar, completed a dissertation in 2014 exploring the legal duty of a bank to prevent pure economic loss to non-customers. Whilst this dissertation is specifically concerned with the legal duty of a beneficiary bank to prevent pure economic loss to a non-customer in the context of phishing, Pienaar’s dissertation proved to be of great assistance in answering the question that this dissertation is concerned with. However, this dissertation after a consideration of the relevant law and policy considerations, comes to a different finding.
This issue of whether a beneficiary bank owes a legal duty to a non-customer was recently the subject of a test case that was referred by the Ombudsman for Banking Services to Judge Malan...
LL.M.(Banking Law)