The Criminal Court of Parma has recently rejected an appeal against a fraud allegedly made online. The appellant had also sued the bank in question in order to obtain the return of the sums allegedly stolen.
On the merits, the court has ascertained that the bank cannot be held liable on the ground of the appellant’s negligent behaviour in respect of using such means of payment
Indeed, pursuant to Article 12 of Legislative Decree no. 11/2010, all losses arising from unauthorized payment transactions are attributable to the client who acted fraudulently or failed to fulfill obligations concerning the use of the payment means envisaged under the contract entered into with the bank.
Therefore, in the case at issue the client had violated his contractual obligations, as in the days prior to the disallowed payments he had provided his personal and non-transferable access data to an unknown person during a phone call (followed by many others). In addition, the client had failed to notify the bank of the afore-said situation.
On the same topic, the Supreme Court has recently held liable a bank for lack of debtor’s diligence in fulfilling the contract, since it had not adopted suitable means to counter unauthorised access to its clients’ home banking system. In fact, according to the bank’s professional diligence principle – whereby the bank must comply with the parameters of the so-called “prudent banker” – adequate means of proving a transaction must be put in place, capable of tracing back the client who has carried out such transaction. In the case decided by the Cassation, while the client had correctly alleged the bank’s failure to act (i.e., to counteract the unlawful withdrawal), the bank failed to prove to have been compliant with the prudential rules governing the use of the home banking system.
Criminal Court of Parma, order of 27 April 2022 and Supreme Court, Civil section I, decision of 20 May 2022 no. 16417