Social contact responsibility in banking
In the event of social contact responsibility in the banking sector, the employee has to respond either to a lack of control over the documents that have been submitted to him or to the disclosure of false information.
In order to adapt to various situations, the issue of compensation for damages must overcome the traditional division between contractual and non-contractual liability, since compensation is often requested in situations where instead of a contract there is “contact”.
“Qualified social contact“ is precisely what is established between a professional (who may be a doctor, teacher, real estate broker, etc.), who requires attention and diligence, and is a subject who relies on the professional as such.
The bank, and each of its employees, is subject to strict controls. By its very nature it is a place where the public turns to with confidence.
If there is no due diligence on the part of the professional, it is reasonable to expect compensation that covers the damages caused.
Examples of responsibilities from qualified social contact
A type of liability from qualified social contact in the banking sector arises, for example when a non-transferable cheque is paid to the wrong person.
Failure to identify the person carrying the cheque compromises the true holder who is entitled to compensation. For the united sections of the Court of Cassation, in sentence n.12477 of 2018, “the person who pays a non-transferable cheque to a person other than the borrower or the banker for collection, is liable for the payment”.
By 2007 the same Court of Cassation, with judgment n.14712, it had identified “the one who pays” as also the employee of the bank, that is, the one who has control over cheques with a non-transferability clause and the one who is able to cash it.
The nature of the banker’s liability will be comparable to that of a contract, since the bank has an obligation to protect its clients.
Law 1736 governing the use of cheques dates back to 1933 (The Royal Decree on “Provisions of bank cheques, bankers’ drafts and some special securities of the Issuing Institute, the Bank of Naples and the Bank of Sicily”).
It specifies how non-transferable bank cheques must be paid only to the borrower or credited to their relevant account.
The cheque can only be paid to the banker for collection. It is a pity that the law does not specify the type of liability faced by the banker who does not comply with lawful behavior and that is why, over time, its application has resulted in diverse interpretations using the principle of ‘social contact’.
Once the liability attributable to the bank is classified as contractual, a limitation period of ten years is prescribed and the burden of proof resides with the negotiating bank, which is responsible for proving that the failure is not attributable to them and that their employees have proven professional and diligent.
The bank’s liability of false information provided to third parties is also classified as social contact liability.
Incorrect information, if it comes from a bank, can justify a liability if it is used in a way that results in damage.
If there is a cause and effect linked between the information received, as incorrect or incomplete, and the damage suffered, the bank will have to answer for the consequences.
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