In banking law, every client, like any prudent and diligent person, must pay attention to his bank accounts and to the transactions passing through them. Every client must also collect his account statements regularly and promptly dispute any abnormal or unauthorised transactions. Silence, or the absence of a dispute within a short time, creates a presumption that the transactions were accepted. A client who neglects to read his statements and check their content commits a contractual fault [1]. The principle also applies to investment advice and discretionary portfolio management.<\/p>\n
Banks generally include clauses in their general terms and conditions reflecting these principles, which stem both from a general duty of prudence and from everyone’s obligation to mitigate their own loss.<\/p>\n
Some banks go further and provide in their general terms for a shortening of the five-year or ten-year limitation period, depending on the type of liability at stake. This contractual shortening of the limitation period is unanimously accepted by scholarship [2] and case law [3], since the period is not a matter of public policy.<\/p>\n
In 2019, before the Turnhout Court of First Instance [4], a client sought compensation from his bank for misappropriations on his account between 2002 and 2016, totalling more than one million euros. The bank first argued that the action was inadmissible, based on the three-year limitation period in its general terms and conditions. Those terms were enforceable against the client, notably because he had signed the account-opening document acknowledging receipt, awareness and acceptance of them.<\/p>\n
The client argued that this shortening of the ordinary limitation period breached Articles VI.82 and VI.83, 30\u00b0 of the Code of Economic Law, because it inappropriately reduced his rights against the bank [5]. He also claimed his statements were sent to the registered office of his companies, which the bank’s exhibits disproved.<\/p>\n
The court recalled that the account holder must give the bank the correct address for statements and correspondence; the bank merely follows its client’s instructions. More generally, every account holder has a duty to organise the administration and monitoring of his finances diligently. In this case, the client could access his statements online and monitor the transactions on his accounts, so as to dispute in good time those he considered unauthorised. A large part of the disputed transactions had moreover benefited accounts of companies of which he was a director, and to which he also had access.<\/p>\n
The court concluded that the contractual three-year limitation period, running from the disputed transactions, did not breach Book VI of the Code of Economic Law and did not disproportionately limit the client’s rights. All claims relating to transactions more than three years before the writ were declared inadmissible.<\/p>\n
For the remaining transactions within the three years before the writ, the court applied Article VII.41, paragraph 1 of the Code of Economic Law. A payment services user must notify the bank of unauthorised transactions within a maximum of 13 months from the value date of the debit. On that basis, the court also declared the client’s remaining claims inadmissible [6].<\/p>\n
This 13-month deadline is particularly important in all cases of phishing, bank card fraud and internet scams.<\/p>\n
[1] Brussels, 4 March 2004, D.B.F., 2004, 227, note R. Steennot; Comm. Brussels, 13 January 1998, R.D.C., 1999, 680.<\/p>\n
[2] M. Marchandise, “La prescription”, in De Page, Trait\u00e9 de droit civil belge, vol. VI, Brussels, Bruylant, 2014, No 265; see also Brussels, 29 March 2012, J.L.M.B., 2012\/25, pp. 1190-1203; Brussels, 8 October 2012, R.G.A.R., 2013, p. 14961.<\/p>\n
[3] Comm. Brussels, 8 April 2014, unreported, R.G. A\/5766\/2011; Comm. Brussels, 18 November 2014, unreported, R.G. 13\/07390; Civ. Brussels, 6 June 2017, unreported, R.G. 15\/7121\/A; Civ. Walloon Brabant, 12 October 2015, unreported, R.G. 14\/619\/A; Comm. Brussels, 22 May 2014, unreported, R.G. 3621\/13; Civ. Brussels, 18 November 2014, D.B.F., 2014, 290.<\/p>\n
[4] Civ. Turnhout, 25 June 2019, unreported, R.G. 18\/1390\/A.<\/p>\n
[5] The client relied on a Li\u00e8ge Court of Appeal judgment (Li\u00e8ge, 6 March 2014, D.A.O.R., 2014, 111, 184). The court declined to apply it by analogy: that case concerned a fraud organised by independent agents of a bank, who had deliberately arranged for the client not to discover the fraud, notably by diverting her statements to the fraudulent agent. In those specific circumstances, the client had genuinely been unable to exercise her rights in time.<\/p>\n
[6] The court could equally have done so, a fortiori, for the earlier transactions, independently of the bank’s general terms and conditions.<\/p>\n
This article is a translation. Only the French version is authoritative. It is provided for information purposes and does not constitute legal advice.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" A general duty of vigilance over one’s bank accounts In banking law, every client, like any prudent and diligent person, must pay attention to his bank accounts and to the transactions passing through them. Every client must also collect his account statements regularly and promptly dispute any abnormal or unauthorised transactions. Silence, or the absence… Continue Reading →<\/a><\/p>\n","protected":false},"author":185562167,"featured_media":4469,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_coblocks_attr":"","_coblocks_dimensions":"","_coblocks_responsive_height":"","_coblocks_accordion_ie_support":"","advanced_seo_description":"Contractual shortening of limitation periods and the 13-month deadline of Article VII.41 CDE: why late disputes fail before Belgian courts.","jetpack_seo_html_title":"Late Disputes of Banking Transactions: the Consequences","jetpack_seo_noindex":false,"jetpack_seo_schema_type":"","_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_wpcom_ai_launchpad_first_post":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[11430065,11430070],"tags":[],"class_list":["post-9359","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-comptes-et-operations-bancaires","category-services-de-paiement","clear","fallback-thumbnail"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/droitbancaire.be\/wp-content\/uploads\/2022\/02\/contestation-operations-bancaires.jpg?fit=1280%2C847&ssl=1","jetpack_likes_enabled":true,"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/pbYDZD-2qX","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/posts\/9359","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/users\/185562167"}],"replies":[{"embeddable":true,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/comments?post=9359"}],"version-history":[{"count":1,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/posts\/9359\/revisions"}],"predecessor-version":[{"id":9360,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/posts\/9359\/revisions\/9360"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/media\/4469"}],"wp:attachment":[{"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/media?parent=9359"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/categories?post=9359"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/droitbancaire.be\/en\/wp-json\/wp\/v2\/tags?post=9359"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}