How should banks reimburse their customers who are victims of fraud since only the “special” liability regime, defined in Articles L. 133-18 to L. 133-24 of the Monetary and Financial Code, must be applied, and not plus, also, that of common law contractual liability, provided for in France by the civil code, which would have the effect of subjecting them to a more severe regime than their competitors?
The commercial chamber of the Court of Cassation answers this question little by little, through the judgments it renders, accompanied by explanatory press releases. On Wednesday January 15, 2025, she provided details on the case where the client committed “gross negligence”, as in the following case.
On June 23, 2015, two companies, Artemis Group and Artemis Security, noted that six bank transfers, for a cumulative amount of nearly 500,000 euros, had been made from their accountant's computer, for the benefit of unknown beneficiaries, on accounts opened abroad. They are filing a complaint for fraud.
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-An expert report reveals that the accountant received two PDF files and a Word file infected by a “Trojan horse”. When she opened them, a scammer took control of her computer.
BRED Banque Populaire refuses to reimburse the sums it cannot recover. She considers that the accountant was negligent in allowing the intrusion to take place. Indeed, while the emails which contained the infected attachments were supposed to come from the operations manager, they were written in English (« Good day ! Please note that our department needs several documents… »), which should have alerted him and prevented him from opening them.
Trojan horse
The companies take legal action. THE January 18, 2023, the Paris Court of Appeal considers that the faults are shared, the customers having certainly shown negligence, but the bank having also failed in its duty of vigilance: it did not take into account the warning from the Governmental Center of monitoring, alerting and responding to computer attacks on the circulation of the Trojan horse, nor numerous connection attempts on the day of the incident. The court orders BRED to reimburse 50% of the losses suffered. The court therefore operates a sharing of responsibility, on the basis of article 1147 of the civil code.
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