Bordeaux Court of Appeal (Cour d’appel de Bordeaux), 1st Civil Chamber, 23 February 2026, No. 23/05381
🔑 Key Takeaways
- The bank is under no legal obligation to verify the IBAN before executing a regular transfer order authorised by its customer, who has sufficient funds
- The special regime of Article L. 133-21 of the Monetary and Financial Code (code monétaire et financier) (applicable to the facts of February 2022) excludes ordinary contractual liability for erroneous payment orders
- Where a bank itself detects a suspicion of fraud after a transfer has been executed, it incurs liability if it cannot show that it immediately initiated a recall procedure (recall of the funds)
- The burden of proving that the recall procedure was actually carried out lies with the originating bank, which holds the banking information
- The compensable loss is the loss of a chance of recovering the funds had the procedure been initiated without delay, assessed here at 20% of the amount of the fraudulent transfer
- The beneficiary bank’s response time to a recall request is 15 days, a period during which the funds should ideally still be available in the account
Contents ▼
- What is the background to this fraudulent transfer case?
- What rules apply to the execution of a payment order?
- What liability regime applies to transfers?
- What are the bank’s obligations when executing a transfer?
- What must a bank do when it detects a suspicion of fraud?
- How does the recall procedure work?
- Who bears the burden of proving the recall?
- How is the loss assessed in the event of a banking failure?
- What solution did the Court of Appeal adopt?
- FAQ: Frequently Asked Questions
What Is the Background to This Fraudulent Transfer Case?
On 10 February 2022, the company Garage [Q] made a bank transfer of €16,126 from its account with Banque Populaire Aquitaine. The payment was intended for the company Alphabet Francefleet, from which the garage had just bought a used vehicle on 9 February 2022. To carry out the transaction, the garage’s manager entered the IBAN shown on the purchase order he had received.
Five days later, on 15 February 2022, Garage [Q] was contacted by its bank, which suspected a fraudulent transfer. On checking, it turned out that the IBAN entered did not match that of Alphabet Francefleet. The garage filed a criminal complaint for fraud (escroquerie) the same day.
The analysis of the facts reveals that the garage was the victim of a sophisticated fraud: malicious individuals had hacked its email address and replaced the genuine purchase order sent by Alphabet Francefleet with a fake document on which the bank details (RIB) had been altered. This fraud technique, known as a “man in the middle” attack, has become common in commercial transactions.
A standardised international bank account identifier that uniquely identifies a bank account for the purposes of transfers, notably within the SEPA area (Single Euro Payments Area). In France, the IBAN has 27 characters and begins with FR.
The procedure to recover the funds proved disappointing. On 4 March 2022, the garage recovered only €108.50, from an account in the name of Mr [D] [V]. By email of 4 November 2022, Banque Populaire Aquitaine informed its customer that a RECALL request (recall of the funds) had allegedly been rejected on 21 February 2022, although the bank subsequently produced no documentary evidence of this step.
In that situation, on 29 June 2022, Garage [Q] summoned its bank before the Court of First Instance of Bordeaux (tribunal judiciaire de Bordeaux), alleging a breach of its duty of vigilance in executing the transfer order.
What Decision Was Made at First Instance?
The Court of First Instance of Bordeaux, by judgment of 7 November 2023, held the bank liable. It ordered Banque Populaire Aquitaine to pay Garage [Q] the sum of €15,857.32 in damages, corresponding to almost the entire loss suffered (after deducting the €108.50 recovered and €160 in bank charges).
The bank was also ordered to pay €1,500 under Article 700 of the Code of Civil Procedure (code de procédure civile) as well as the costs of the proceedings. Contesting that decision, the bank lodged an appeal on 29 November 2023.
What Rules Apply to the Execution of a Payment Order?
What Liability Regime Applies to Transfers?
The Court of Appeal first recalls the applicable legal framework. As the disputed payment order was made on 10 February 2022, the applicable provisions are those of the law predating the recent European regulatory developments that strengthen payment service providers’ duties of vigilance regarding transfer security.
An institution authorised to provide payment services: a bank, an electronic money institution or a payment institution. The PSP executes the payment orders (transfers, direct debits) given by its customers and is subject to the rules of the Monetary and Financial Code.
At the date of the facts, Article L. 133-21 of the Monetary and Financial Code applies. That provision establishes a special liability regime for payment transactions. The Court stresses an essential principle: this special regime excludes any application of the ordinary rules of contractual liability.
In practical terms, this means that contractual liability under Article 1231-1 of the Civil Code (code civil) (which penalises the non-performance of a contractual obligation) cannot be relied on where a special liability regime exists. A bank customer who is the victim of a fraudulent transfer therefore cannot freely rely on the general law of contract to hold their bank liable.
The Court then states an important rule that flows from this special regime:
“A payer who has given their payment service provider an erroneous payment order, whether the error originates from the payer or from a fraud by a third party, cannot in principle bring an action based on the payment service provider’s lack of vigilance in monitoring the account in order to obtain compensation from it for the loss suffered.”
This principle reflects an essential legal reality: where a customer themselves orders a transfer to a fraudulent IBAN (even if they were the victim of a fraud at the time they obtained that IBAN), they cannot, as a general rule, blame their bank for executing the order without verifying it. The law thus places on the payer the risk of error in designating the beneficiary.
What Are the Bank’s Obligations When Executing a Transfer?
The Bordeaux Court of Appeal recalls the obligations of the account-holding banker when it receives a transfer order from its customer. These obligations are strictly delimited and protect the customer’s autonomy in managing their affairs.
The banker is obliged to execute a transfer ordered by its customer, provided that the following conditions are met:
- The order must be formally in order (compliant with the procedures agreed between the bank and the customer)
- The payer must have been identified with certainty
- The customer must actually have consented to the transaction
- The account must contain sufficient available funds to carry out the transfer
Where these conditions are met, the bank must execute the order without delay. On the other hand (and this is an essential point), the Court reaffirms the principle that the banker must not interfere in its customer’s affairs (non-immixtion):
“Because it is bound not to interfere in its customer’s affairs, the account-holding banker is not, in principle, required to carry out enquiries or to request supporting documents in order to ensure that the transactions requested by its customer are regular, not dangerous to the customer and not liable to harm a third party.”
This absence of an obligation to carry out systematic verification rests on respect for contractual autonomy and on the practical impossibility for a bank of checking the economic appropriateness or regularity of every transaction ordered by its millions of customers.
The absence of a general obligation to verify does not mean that the bank is entirely exempt from vigilance. In certain exceptional cases (obvious signs of fraud, a transaction wholly inconsistent with the account’s profile), case law may hold liable a bank that should have alerted its customer.
In this case, the Court finds that the payment order of 10 February 2022 contained no readily detectable anomaly and no apparent sign of falsification. The transfer was initiated by Garage [Q] itself, which entered the beneficiary’s IBAN in its online banking space and then validated the transaction by entering its bank card and a confidential code.
In those circumstances, the bank could not lawfully refuse to execute the transfer order. The debate therefore does not concern the initial authorisation of the transaction, but what happened afterwards, when the bank itself detected an anomaly five days later.
What Must a Bank Do When It Detects a Suspicion of Fraud?
This is the heart of the dispute. Garage [Q] does not criticise its bank for executing the transfer on 10 February 2022, an operation the bank was indeed required to carry out. What it does criticise is that, five days later, on 15 February 2022, the bank identified a mismatch between the IBAN used and the company Alphabet Francefleet named as beneficiary, without however acting effectively to recover the funds.
How Does the Recall Procedure Work?
When a transfer proves fraudulent, the only way to recover the funds is to launch a “recall” procedure (a request for the return of the funds) with the beneficiary bank. This procedure, although informal and not provided for by any legislation, is used between banks as part of interbank cooperation.
An amicable procedure by which the originating bank of a transfer asks the beneficiary bank to return the funds transferred, generally in the event of fraud or error. This request has no binding force: the beneficiary bank has a period (generally 15 days) to accept or refuse, depending in particular on whether the funds are available in the recipient account.
📊 HOW THE RECALL PROCEDURE WORKS
The originating bank or the customer detects an anomaly in the transfer made
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The originating bank immediately contacts the beneficiary bank to request the return of the funds
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A 15-day period to check whether the funds are available in the recipient account and to obtain the account holder’s agreement
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Acceptance: full or partial return of the funds if the account holds sufficient funds
Refusal: if the account is empty, if the account holder refuses, or if the funds have already been transferred on
⚡ Time is critical: The later the recall request, the lower the likelihood of recovering the funds (accounts emptied, funds transferred to other accounts, etc.)
The effectiveness of the recall procedure therefore rests on two cumulative conditions:
- Speed of the request: the earlier the procedure is initiated after the fraudulent transfer, the higher the chances of recovering the funds
- Availability of the funds in the beneficiary account: if the fraudster has already emptied the account or transferred the sums on, the recall will inevitably be unsuccessful
The Court also recalls that a recall request made late after the disputed payment transaction is “illusory”. Fraudsters generally act very quickly to empty the bank accounts used to receive fraudulent transfers, moving the funds to other accounts, often located abroad.
Who Bears the Burden of Proving the Recall?
The Bordeaux Court of Appeal settles a question that is essential to the outcome of the dispute: who must prove that the recall procedure was actually and promptly carried out?
The judgment states clearly that the burden of proving that the recall procedure was actually carried out lies with the originating bank, which holds the funds and the banking information. This is a classic principle of evidence: whoever alleges a fact must prove it, and whoever holds the evidence must produce it.
In this case, Banque Populaire Aquitaine claims to have made a recall request which allegedly received a negative response on 21 February 2022. However, the Court notes that the bank produces nothing to support its assertions:
- No copy of the recall request sent to the beneficiary bank has been put before the court
- No response from the beneficiary bank has been produced
- No written record documenting the precise date on which the request was sent has been provided
- The bank relies solely on assertion, without supporting documents
The Court also notes an inconsistency: the partial return of the funds (€108.50) occurred only on 4 March 2022, more than 15 days after the alleged date of the negative response (21 February 2022). This delay raises questions about the reality and effectiveness of the recall procedure allegedly initiated.
Faced with this evidential failure, the Court draws the necessary legal consequences. It considers that the bank has not shown that it acted with the required diligence from the moment it detected the suspicion of fraud on 15 February 2022.
What Does the Bank’s Culpable Inaction Consist Of?
The Court of Appeal builds its reasoning in two stages. First, it reaffirms the principle that the bank was not legally required to block the funds or verify the payment order on 10 February 2022. Second, it distinguishes that situation from the one prevailing from 15 February onwards, the date on which the bank itself detected the anomaly.
From the moment the bank informed its customer by email of 15 February 2022 of a “suspicion of fraud as to the identity of the IBAN used to place the payment order”, it could no longer remain passive. The judgment states:
“Although the bank was under no obligation to carry out that verification, it could not leave that suspicion, once discovered, unaddressed by a recall procedure.”
The bank’s fault therefore does not lie in having executed the initial transfer (which it was required to do), nor even in having detected the anomaly only five days later (that detection delay is not held against it). The fault lies in the absence of immediate diligence once the fraud was suspected.
The Court characterises this fault as “culpable inaction”, which manifests itself in:
- The failure to immediately launch a recall procedure as of 15 February 2022
- The absence of proof of any step taken between 15 February and 21 February (the alleged date of the negative response)
- Passive conduct even though the bank had itself identified the risk
This inaction amounts to a breach of the duty of vigilance. Although the bank is not legally required to verify every payment order, once it detects an anomaly itself, it must act to limit its customer’s loss. This obligation stems from the general duty of loyalty and cooperation that characterises the relationship between a banker and its customer.
How Is the Loss Assessed in the Event of a Banking Failure?
The legal characterisation of the loss suffered by Garage [Q] is a major issue in the dispute. The court of first instance had assessed that loss at 99% of the amount of the fraudulent transfer, that is, almost the entire sum lost. The Court of Appeal adopts a radically different analysis.
What Is the Loss of a Chance?
The Court characterises the loss as a “loss of a chance” (perte de chance) rather than a certain loss. This legal characterisation changes everything in the assessment of compensation.
A loss corresponding to the disappearance of a favourable possibility. The aim is not to compensate for the final damage (here, the loss of €16,126), but for the loss of the possibility of avoiding that damage. The loss of a chance is a present and certain loss, but its amount necessarily represents a fraction of the final loss, proportionate to the probability the victim had of avoiding the damage had the fault not been committed.
In practical terms, the Court does not consider that the bank directly caused the loss of the funds. That loss is due to the fraud itself and to the erroneous payment order given by the garage. However, the bank’s failure deprived its customer of the chance of recovering the funds through a prompt recall procedure.
The Court’s reasoning runs as follows:
- Certain loss: Garage [Q] lost €16,017.50 (after deducting the €108.50 recovered)
- Bank’s fault: failure to act with immediate diligence to initiate a recall as of 15 February 2022
- Causal link: this inaction deprived the garage of the possibility of obtaining the return of the funds
- Characterisation: this is a loss of a chance, because nothing guarantees that an immediate recall would have succeeded
The judgment specifies that this loss of a chance “appears to be in a direct and certain causal relationship with the deprivation of Garage [Q] of the possibility of obtaining the return of the funds available on the day of the request”.
How Is the Compensation Rate Set?
Once it is established that the loss is a loss of a chance, its amount remains to be assessed. The Court must assess what probability Garage [Q] had of recovering the funds had the recall procedure been initiated immediately on 15 February 2022.
The Court carries out a factual analysis to determine that probability:
It first notes that five days had already elapsed between the payment order (10 February) and the detection of the fraud (15 February). This delay, which cannot be attributed to any culpable conduct by the bank since it was not required to verify the order, already significantly reduces the chances of a recall succeeding.
Indeed, in transfer scams, fraudsters generally act with extreme speed. The bank accounts they use to receive the fraudulent funds are emptied almost immediately, often within 24 to 48 hours of receipt of the funds. The sums are transferred to other accounts, sometimes abroad, before being converted or withdrawn in cash.
The Court infers that there was already only a “low probability” of recovering the funds as at 15 February 2022. However, a chance, even a slim one, remains a chance that the bank should not have allowed to disappear through its inaction.
On the basis of this analysis, the Court sets the loss of a chance at 20% of the total loss. This percentage reflects the trial judges’ sovereign assessment of the probability that a recall initiated on 15 February would have succeeded. It reflects the fact that the chances of recovering the funds were real but limited, given the time that had already elapsed and the very nature of transfer frauds.
🔢 CALCULATION OF THE COMPENSATION
| Amount of the fraudulent transfer | €16,126.00 |
| Amount recovered on 4 March 2022 | – €108.50 |
| Certain loss | €16,017.50 |
| Loss-of-a-chance rate applied | 20% |
| Compensation awarded | €3,203.50 |
The difference from the first-instance decision is significant: the court had ordered the bank to pay €15,857.32 (99% of the loss), whereas the Court of Appeal reduces that award to €3,203.50 (20% of the loss).
This method of assessment is consistent with settled case law on the loss of a chance. The French Supreme Court (Cour de cassation) regularly recalls that compensation for a loss of a chance must be measured by the chance lost and cannot be equal to the advantage that chance would have procured had it materialised. In other words, compensating the loss of a chance at 100% would amount to compensating not the chance lost but the final outcome, which is legally incorrect.
Why Was the First-Instance Decision Wrong?
The Court of Appeal overturns the first-instance court’s assessment on two essential points.
First, the court had held the bank liable by relying on a legal reference unsuited to the case at hand. This error as to the legal basis alone justifies reversing the judgment on this point.
Second, the court had assessed the loss at 99% of the loss suffered, which comes close to treating the bank as directly responsible for the entire loss. The Court considers this assessment “totally disconnected from the fair compensation of the loss of a chance”.
Indeed, setting the loss of a chance at 99% denies the very nature of this type of loss. It assumes that the recall procedure would have been almost certain to succeed, which is manifestly unrealistic given the facts of the case: five days already elapsed, the fraudulent nature of the transaction, and the usual practices of fraudsters who immediately empty the accounts.
The Court reaffirms that “the loss of a chance can only be a fraction of the loss”. It sets that fraction at 20% in this case, which is a balanced assessment that takes account of the real chances of a recall succeeding and of the bank’s actual failure.
What Solution Did the Court of Appeal Adopt?
At the end of its analysis, the Bordeaux Court of Appeal partially reverses the first-instance judgment. It holds Banque Populaire Aquitaine liable, but on a different legal basis and for a considerably reduced amount.
What Is the Operative Part of the Judgment?
The Court decides as follows:
- Partial reversal: the judgment is reversed only as to the amount of damages
- Bank held liable: Banque Populaire Aquitaine Centre Atlantique must pay €3,203.50 in damages to Garage [Q]
- Irrecoverable costs: the bank must also pay a further €1,500 under Article 700 of the Code of Civil Procedure (in addition to the €1,500 already awarded at first instance)
- Costs: the bank, as the losing party, is ordered to pay the costs of both the first-instance and appeal proceedings
Garage [Q] therefore succeeds on the principle of the bank’s liability, even though the amount of compensation is significantly reduced compared with the first-instance decision. It recovers a total of €3,203.50 for the loss suffered, as well as €3,000 for its legal fees (€1,500 at first instance + €1,500 on appeal).
What Are the Practical Lessons of This Judgment?
This decision provides several important clarifications on the bank liability regime for fraudulent transfers.
For customers who are victims of fraud, the judgment confirms that it is very difficult to hold one’s bank liable where one has oneself, even when deceived by a fraudster, given the order to transfer to an erroneous IBAN. The special regime of the Monetary and Financial Code places on the payer the risk of error in designating the beneficiary.
The only avenue of recourse against the bank lies in demonstrating a specific breach of its obligations once the fraud has been detected. Even then, the bank must itself have detected the anomaly and failed to react with the required diligence.
For banks, the judgment sets a clear line of conduct: if they themselves detect a suspicion of fraud after a transfer has been executed, they must immediately initiate a recall procedure and keep precise documentary evidence of it (written request to the beneficiary bank, response received, exact dates).
Failure to keep these records exposes the bank to being held liable on the basis of the loss of a chance, even if the amount of compensation remains limited (20% in this case).
On the recall procedure, the judgment recalls the crucial importance of timing. Each day of delay reduces the chances of recovering the funds. A procedure initiated five days after the fraudulent transfer already offers only a low probability of success.
Banks therefore have an interest in putting in place automatic systems for detecting suspicious transfers, making it possible to raise real-time alerts on inconsistencies between the declared beneficiary’s identity and the actual holder of the IBAN. Some banks have already developed such tools as part of their fight against fraud.
On the burden of proof, the judgment is a warning to banks: they must carefully document their internal procedures. Claiming to have made a recall without being able to prove it is equivalent, in the eyes of the judge, to not having made one.
What Regulatory Developments Lie Ahead?
Ongoing European regulatory developments aim to strengthen payment service providers’ duties of vigilance regarding transfer security. This trend should lead banks to put in place mechanisms for automatically checking the consistency between the IBAN entered and the declared beneficiary’s identity.
Several European countries have already begun rolling out “confirmation of payee” (CoP) systems, which check in real time that the beneficiary’s name matches the IBAN. Where an inconsistency is detected, the customer is alerted before the transfer is finally validated.
These tools should considerably reduce the number of transfer frauds and, correspondingly, the number of disputes between customers and banks on the subject. They will also shift the dividing line of liability: if an automatic verification system flags an inconsistency and the customer validates the transaction anyway, it will be harder for them to hold their bank liable afterwards.
Conclusion
The judgment delivered by the Bordeaux Court of Appeal on 23 February 2026 perfectly illustrates the complexity of the liability regime applicable to fraudulent transfers. It draws an essential distinction between two moments in the life of a disputed payment transaction.
At the time the order is executed, the bank has no obligation to verify the appropriateness or regularity of the transfer ordered by its customer. The principle of non-interference in the customer’s affairs prevails, and the special regime of the Monetary and Financial Code rules out any liability of a bank that executes a regular, authorised and funded order.
On the other hand, once the bank itself detects, after the event, a suspicion of fraud, it must act diligently to limit its customer’s loss by immediately initiating a recall procedure. Its inaction at that stage engages its liability, not for the whole of the loss (which results from the fraud itself), but for the loss of the chance of recovering the funds.
This solution strikes a balance between protecting customers who are victims of fraud and respecting contractual autonomy. It encourages banks to be vigilant once they become aware of an anomaly, while avoiding imposing on them a general and systematic duty to monitor all payment orders, which would be technically impossible and economically unrealistic.
For businesses and individuals, this judgment is a reminder that the first line of defence against transfer fraud remains their own vigilance: scrupulous checking of IBANs, confirmation of bank details through a different channel from the one through which they were received (telephone rather than email), and wariness of urgent transfer requests.
For banks, it is a reminder of their obligations once they have detected a fraud: immediate responsiveness, precise documentation of the steps taken, and preservation of evidence. The ongoing regulatory developments should moreover lead them to generalise automatic transfer consistency-checking tools, gradually transforming their passive role as executor into the more active one of guardian of payment security.
FAQ: Frequently Asked Questions
Can my bank refuse to execute a transfer I order if it suspects fraud?
In principle, no. A bank is obliged to execute its customers’ transfer orders provided they are regular (validly authorised order, sufficiently funded account, customer identification verified). A bank cannot refuse to execute an order on the ground that it considers it might be fraudulent or contrary to its customer’s interests, because it must respect the principle of non-interference in its customer’s affairs.
However, in exceptional cases where there are manifest and objective signs of fraud (an amount wholly inconsistent with the account’s activity, an atypical transaction, a security system alert), some banks may temporarily block the transaction in order to contact their customer and make sure that they are indeed the source of the order. This practice nevertheless remains legally delicate and must be handled with caution by banks.
Ongoing regulatory developments should strengthen banks’ duties of vigilance and enable them to flag to the customer, before the transfer is executed, any inconsistency detected between the IBAN and the declared beneficiary’s identity.
I have been the victim of a fraudulent transfer: how quickly must I contact my bank?
As quickly as possible, ideally within hours of discovering the fraud. Time is absolutely critical in cases of fraudulent transfers. Fraudsters generally act very fast: they empty the beneficiary account within 24 to 48 hours of receiving the funds, or even faster.
The sooner you contact your bank, the higher the chances of recovering all or part of the funds through a recall procedure. After a few days, the probability of success falls drastically because the fraudulent account has generally already been emptied.
In parallel with notifying your bank, you must also file a criminal complaint with the police or gendarmerie for fraud (escroquerie). This complaint will trigger a criminal investigation and may serve as the basis for a possible compensation claim if the perpetrators of the fraud are identified (which, unfortunately, remains rare).
What is a recall procedure and how does it work in practice?
A recall (or recall of funds) is an amicable procedure by which your bank (the originating bank) asks the fraudulent beneficiary’s bank (the beneficiary bank) to return funds transferred by mistake or as a result of fraud. This procedure is not regulated by law but forms part of interbank cooperation.
In practice, your bank sends a formal request to the beneficiary bank explaining the situation (fraud, error) and requesting the return of the funds. The beneficiary bank generally has 15 days to respond. It checks whether the recipient account still holds funds and contacts its own customer (the beneficiary of the transfer) to obtain their agreement to the return of the funds.
The recall has no binding force: the beneficiary bank and its customer may refuse to return the funds. Likewise, if the account has already been emptied, the recall will inevitably be unsuccessful. This is why speed is essential: the earlier the request is made, the higher the chances that the funds are still available.
If the recall is refused or fails, the only avenues of recourse are a criminal complaint (to try to identify and prosecute the perpetrators of the fraud) and, possibly, a liability action against your own bank if it made a fault in handling the matter.
Can I hold my bank liable if I gave the fraudulent transfer order myself?
It is very difficult, but not entirely impossible. The principle laid down by the Monetary and Financial Code is that where you yourself gave the transfer order (even if you were deceived by a fraudster as to the beneficiary’s identity), you cannot, as a general rule, blame your bank for executing your order.
The bank’s liability can be engaged only in very specific cases:
1. Manifest signs of fraud: If the transfer order contained obvious and objectively detectable anomalies (an amount wholly inconsistent with your usual activity, a manifestly suspicious recipient), the bank could, in certain exceptional cases, be held liable for not having alerted you.
2. Failure after detection of the fraud: As the Bordeaux judgment illustrates, if your bank itself detects a suspicion of fraud after the transfer has been executed and does not act immediately to initiate a recall, it may be held liable for the loss of the chance of recovering the funds.
3. Failure to warn: In certain situations, notably for non-sophisticated business customers or vulnerable persons, the bank may be held liable for breach of its duty to warn if it notices unusual and dangerous transactions without alerting its customer.
In all cases, the compensation obtained will generally be limited (the loss-of-a-chance principle) and will cover only a fraction of the total loss.
How can I prove that my bank did not handle the recall procedure properly?
This is one of the key points of the Bordeaux judgment: the burden of proof lies with the bank, not the customer. In other words, it is for your bank to show that it did initiate the recall procedure within the appropriate time and that it acted diligently.
In court proceedings, your lawyer will ask the bank to produce the following documents:
- A copy of the recall request sent to the beneficiary bank (with the date it was sent)
- A copy of the beneficiary bank’s response
- Correspondence exchanged with the beneficiary bank
- Any document evidencing the steps taken to recover the funds
If the bank cannot produce these documents or merely asserts, without documentary proof, that it made the recall, the judge will consider that it has not fulfilled its duty of diligence. That is exactly what happened in the case decided by the Bordeaux Court: the bank asserted that it had received a refusal on 21 February 2022, but produced no document in support.
For your part, keep all exchanges with your bank carefully (emails, letters, telephone records) together with the exact dates of the steps you took. These items will make it possible to establish the chronology and any delays or failings on the bank’s part.
What precautions should I take to avoid transfer fraud?
Prevention remains the best defence against transfer fraud. Here are the essential habits to adopt, particularly for businesses:
Before making a transfer:
- Systematically check any IBAN received by email by comparing it with the one shown on previous invoices or on the beneficiary’s official website
- If a change of bank details is notified by email, immediately contact your contact person by telephone (on a number you already know, not the one shown in the suspicious email) to confirm the change
- Be wary of urgent transfer requests: this is a classic fraudster technique
- Check the sender’s email address carefully: fraudsters often use addresses very close to the legitimate one (one letter changed, one character added)
Organisational measures:
- Put in place a dual-validation procedure for large transfers
- Create a secure database of your regular suppliers’ IBANs
- Regularly make your teams aware of phishing techniques and CEO fraud (fraudes au président)
- Install effective security software and keep it up to date
These simple precautions can spare you significant financial losses and the lengthy court proceedings needed to try to recover the funds.
Can I combine a criminal complaint with an action against my bank?
Yes, absolutely. Contrary to what Banque Populaire Aquitaine argued in this case, filing a criminal complaint for fraud in no way prevents you from bringing a civil liability claim against your bank at the same time.
These are two separate actions pursuing different objectives:
- The criminal complaint aims to identify and punish the perpetrators of the fraud. It may lead to their conviction and, possibly, to damages if the fraudsters are identified and solvent (which remains rare)
- The civil action against the bank seeks compensation for the loss by showing that the bank made a fault in performing its contractual obligations
The Bordeaux Court did not accept the bank’s argument that this twofold approach would amount to “double compensation”. Each potentially liable party must answer for its own failings.
In practice, it is even advisable to file a complaint quickly after discovering the fraud, because this starts the investigation clock and can sometimes make it possible to recover part of the funds if the fraudsters are quickly identified.
How long do I have to take action against my bank after a fraud?
In matters of bank liability, limitation periods vary depending on the legal basis relied on:
Under general law: The limitation period for a contractual liability action against your bank is 5 years from the day you become aware of the damage (Article 2224 of the Civil Code).
Under special banking law: For payment transactions governed by the Monetary and Financial Code (as in the case decided by the Bordeaux Court), the period may differ depending on the nature of the claim.
In the present case, Garage Q acted quickly:
- Transfer made on 10 February 2022
- Fraud discovered on 15 February 2022
- Summons issued on 29 June 2022 (about 4 months after the events)
Our advice: Do not wait to act. The more quickly you react, the more you maximise your chances of recovering the funds (through the recall procedure in particular) and the more you facilitate the gathering of evidence. Exchanges with the bank, account statements and witness statements are easier to gather in the weeks following the fraud.
At Lebot Avocat, we recommend consulting us as soon as you discover the fraud, even before you have exhausted all amicable steps with your bank. Early advice often makes it possible to avoid mistakes that would later compromise your rights.
What is the cost of proceedings against my bank?
The cost of legal action against your bank comprises several items:
Lawyer’s fees: Varying according to the complexity of the case, they may be calculated on a fixed-fee or hourly basis, or include a success-fee element (honoraire de résultat). In a case like that of Garage Q, fees may amount to between €3,000 and €8,000 depending on the stages of the proceedings.
Court costs (dépens): These include registry fees, bailiff’s fees for service of documents, and any expert reports. At first instance and on appeal, allow approximately €500 to €1,500 in costs.
Good news: If you win your case (even partially, as in the Bordeaux judgment), the bank will be ordered to pay the costs and will generally have to pay you a contribution towards your irrecoverable costs under Article 700 of the Code of Civil Procedure.
In the case decided, Garage Q obtained:
- €1,500 under Article 700 at first instance
- A further €1,500 under Article 700 on appeal
- An order that the bank pay the costs of both instances
These sums offset part (but rarely all) of the costs actually incurred. This is why it is essential to assess the cost/benefit ratio of the action with your lawyer before embarking on it, taking into account the amount at stake and the chances of success.
At Lebot Avocat, we systematically offer a preliminary meeting to assess together the strength of your case and the prospects of compensation, so that you can make your decision with full knowledge of the facts.
