The role of the banker as account holder and payment service provider is regularly tested by the increase in sophisticated fraud. The case opposing SAS Fraso and Mr. [F] [W] against SA BNP Paribas perfectly illustrates the complex boundaries of the duty of vigilance (devoir de vigilance) and the duty to warn (devoir de mise en garde), culminating in a major cassation ruling that redefines their limits.
This article traces the stages of this judicial saga, from partial compensation on appeal to the final cassation.
1. Context: A Massive Fraud Following a Property Sale
The company Fraso, whose business is the administration and operation of real estate assets, had been a client of BNP Paribas since 2008. The case originates in the autumn of 2020, when Fraso sold the walls of a supermarket, receiving the exceptional sum of 3,484,518.32 euros on 25 September 2020.
Mr. [F] [W], Fraso’s director, aged 78 at the time, then came into contact via the internet with individuals who presented themselves as financial advisors of the companies Cabi (French) and Alpha Patrimoine (Luxembourgish). These persons proposed fraudulent investments promising exorbitant returns (10.56%, 18% for financial instruments and 15% for nursing home rooms (chambres d’EHPAD)).
Between 9 October and 31 December 2020, Fraso carried out nine bank transfers for a total amount of 1,601,600 euros. These funds were destined for accounts opened in Poland, the Netherlands and Portugal, for the benefit of recipients such as JR Corporate, Gentle & Beyond, or Omecad INV. Although the companies Cabi and Alpha Patrimoine had lawful activities, their identities and commercial references had been usurped.
Unable to access his accounts and in the absence of interlocutors, Mr. [W] filed complaints for fraud in January and February 2021. Subsequently, alerts concerning the fraudulent use of the names Cabi and Alpha Patrimoine were issued by the company OCP and the CSSF (Commission de surveillance du secteur financier) in 2021.
2. The Appeal Judgment: Breach of the Duty of Vigilance but Shared Liability
Sued for liability and compensation for breach of its duty of assistance, duty to warn and duty of vigilance, BNP Paribas was initially cleared by the Commercial Court of Bayonne (Tribunal de Commerce de Bayonne) in its judgment of 24 April 2023 (RG: 2022002271).
Fraso and Mr. [W] appealed this decision.
2.1 The Decision of the Court of Appeal of Pau
The Court of Appeal of Pau, 2nd Chamber – Section 1, rendered its judgment on 6 June 2024 (No. RG 23/01434 – No. Portalis DBVV-V-B7H-IQ6R, Number 24/1896).
The Court of Appeal reversed the first instance judgment, finding the bank contractually liable on the basis of Article 1231-1 of the Civil Code.
The main reasoning of the Court was based on the manifestly unusual and exceptional character of the transfers:
- Amount and Frequency: Nine massive transfer orders (totaling 1,601,600 euros, but the retained loss was 1,473,356 euros) carried out within a very short time period (between October and December 2020).
- Intellectual Inconsistency: The rapid and massive transfer to accounts opened in Poland (sometimes in the name of Fraso itself, which had no known activity or interest in that country or internationally, except for a Senegalese restaurant) gave the orders a “manifestly unusual character doubled by an intellectual anomaly,” especially given that the director was 78 years old.
- Duty of Vigilance: The bank could not execute these orders without questioning its client about the coherence and safety of these operations, even if they were formally regular.
However, the Court of Appeal recognized the fault of Fraso, which had contributed to its own loss by imprudently negotiating investments with exorbitant returns, without a physical meeting or external advice.
The bank’s fault was therefore characterized as a loss of chance of detecting the fraud. The Court assessed this loss at 50% of the misappropriated capital (1,473,356 euros), i.e., the sum of 736,678 euros. However, due to Fraso’s contribution to 50% of its own loss, BNP Paribas was ordered to pay Fraso the sum of 368,339 euros in damages.
Mr. [W] was dismissed from his claim for compensation, as he had “largely contributed to his own loss.”
2.2 The Cassation: The Requirement of an Apparent Anomaly
BNP Paribas filed a cassation appeal against the Pau judgment. The Court of Cassation, in its ruling of 19 November 2025, quashed the Court of Appeal’s decision.
The Applicable Regime (Rejection of the First Ground)
The bank had argued that the general contractual liability regime (Article 1231-1 of the Civil Code) should have been set aside in favor of the exclusive regime of the Monetary and Financial Code (CMF) concerning payment services. The Court of Cassation rejected this ground, recalling that the CMF regime applies only to unauthorized or improperly executed payment operations. Since the transfers were authentic, authorized and properly executed, the application of general law (Article 1231-1 of the Civil Code) was justified.
The Duty of Non-Interference and the Apparent Anomaly (Success of the Second Ground)
However, the Court of Cassation, relying on Article 1231-1 of the Civil Code, ruled in favor of the bank on its second ground, concerning the duty of vigilance.
The Court of Cassation recalled that the banker is bound by the obligation of non-interference in the affairs of his client and must only alert the client in the presence of apparent anomalies that are easily detectable by a normally diligent professional.
Although the Court of Appeal noted the “unusually exceptional” character and the “intellectual anomaly” of the transfers (massive and rapid transfer to Poland, a country where Fraso had no known activity, by an elderly director), the Court of Cassation held that these grounds were insufficient to characterize the existence of apparent anomalies.
Indeed, the Court of Cassation noted that:
- Fraso had in its account a sum far exceeding the amount of the transfers.
- It held significant real estate assets.
- The recipient banks were recognized and established in European Union member states.
In the absence of apparent anomalies meeting the strict definition required by case law, the Court of Appeal failed to provide a legal basis for its decision.
The Decision of the Court of Cassation
Consequently, the Court of Cassation, Commercial, Financial and Economic Chamber, by its Ruling No. 582 FS-B of 19 November 2025 (Appeal No. S 24-18.534, ECLI:FR:CCASS:2025:CO00582), quashed and annulled the judgment of the Court of Appeal of Pau of 6 June 2024, and referred the case to the Court of Appeal of Bordeaux.
Conclusion: The Limits of the Duty of Vigilance
This decision of the Court of Cassation underscores the crucial distinction between a transfer that is merely “unusual” (due to its amount or international recipient) and a transfer presenting an apparent anomaly. An apparent anomaly is one that reveals, in light of the client’s practices, that the order is manifestly irregular or fraudulent for a normally diligent banker.
In this case, despite the significance of the sums and the speed of the transfers following an exceptional receipt, the Court held that the banker, knowing the solid financial position of his client (several real estate assets and available funds), could not be required to interfere in his investment choices, however imprudent they may be (investments at excessively high rates).
It appears that the case law of the Commercial Chamber is tightening in favor of banks on the question of the abnormal character of transactions. Henceforth, for the banker’s liability to be engaged on the basis of his duty of vigilance, the Commercial Chamber appears to require a stronger indication of irregularity than mere inconsistency or unusualness of amounts or destinations, as long as the order is authentic and properly executed.
