The 1st Chamber of the Supreme Court delivered judgment as of May 12, 2016 following a complaint filed by Mr. Elias against Banco Bilbao Vizcaya Argentaria (BBVA), for having carried out this transfer order amounting to 117,249.25 euros, subtracting that amount from the account of Mr. Elias after receiving a fax that ordered the transfer, and without the content of the current account contract signed between the parties provide for the possibility of transfers or provisions through orders received by that means.

In the first instance, the judge gives the reason Mr. Elias, considering that any such transfer without properly examining the accuracy of the order, is a neglect of the bank, who must deploy all the diligence required to good trader in the sector traffic, and especially when the transfer order by fax was not reflected in the current account contract and is also the amount for a very high amount.

Since there was no original fax but only copy of it (the received fax by the bank) calligraphic expert test could not be performed in order to verify whether the firm actually belonged to Mr. Elijah or not, for not having the the original was quite impossible to make such expertise as force, pressure and stroke writing proved canceled.

The bank uses and secondly give reason to BBVA, stating that the terms of the current account agreement did not prevent receive transfer orders by fax and was not included in the contract that said means were subject to key or get, being a common practice with clients who reside abroad and considering that the orderly transfer contained the data of the payer, the current target account was opened in the same bank, the customer was known and solvent and also the order It had been signed by firm whose appearance coincided with that entered on his record, it was logical to conclude that the order was ordered by Mr. Elias. The Provincial Court also noted that, if they really did not match the signature of Mr. Elias was he who must have practiced expert evidence that so credited and missing it because of her, could not be sentenced to BBVA for breach of contract and thus the essential obligation of the Bank to preserve and return the funds deposited.

Mr. Elias presented to the Supreme Court two actions:

1. Extraordinary appeal for procedural infringement: In this appeal Mr Elias argues that it can not weigh on him, the burden of proving the falsity of his signature contained in the fax copy.

The Supreme Court considers (accepts) this resource and revokes the judgment of the Provincial Court, considering that despite the fact do about Mr. Elias the negative effects of the lack of expert evidence, regarding the authenticity of the signature of payer, it is entirely wrong and disproportionate response to the circumstances, as Mr. Elias had no opportunity to arrange and facilitate testing, for the same despite having requested, BBVA opposing it, had no power to have the original of the transfer order, which was necessary to practice the test with guarantees.

2. Appeal: In this appeal Mr Elias alleges the lack of required professional diligence to the bank in keeping the current account, thus omitting to verify the authenticity of the signature, and have contractual breach a transfer through a medium (fax) not agreed between the parties.

The Supreme Court ruled that once the second and third current account contract clauses interpreted, if it is true that they do not prohibit between means of payment may include a transfer order sent by fax, although this does not result means usual banking practice; the truth is that using the medium is conditioned upon two assumptions: there must be prior agreement between the parties on the media supported for the monetary provision payments and must be set by the parties keys and security requirements that accompany such orders disposal. Neither of these assumptions or conditions were fulfilled by the BBVA bank, which nevertheless made the orderly transfer by fax, being said to come from BBVA a breach of contract.

To this must be added that verification of the authenticity of the signature of the payer is a requirement of the required professional diligence to the bank in relation to its essential obligations of management and custody of funds that a holder deposited in your account, breach of which gives rise to compensation of damages. In the case of Mr. Elias that diligence is higher because the Commercial Code requires the bank (commission), the duty to consult with the owner (principal) all matters not provided and expressly prescribed, and taking into account the payment order by fax, was not a means of payment previously agreed by the parties, being well established that Mr. Elias, prior to the transfer order by fax, effected only income in the account, without removing any background, understands that it is more than established that the transfer order had clear irregularities in the recipient’s name and number of accounts, since the identification data of the payer (passport or national identity card) has not contributed, so the bank, according to the criterion of professional diligence, did not fulfill its obligation to check the authenticity of the signature, not making any direct check with the owner of Mr. Elias account.

Therefore, BBVA is condemned to pay Mr Elias the amount of 117,249.25 euros plus legal interest on that sum from the date of filing the claim, also condemning the costs.

 

Sara Benjelali González

Lawyer