Bank Collections and Payment Transactions: A Comparative Legal Analysis

Abstract

This is a study of the law governing the bank-customer relationship pertaining to the disposition of funds by cheques and credit transfers, covering both paper-based and electronic payments. The work addresses, with various degrees of detail, common law, civilian, and `mixed' jurisdictions, particularly, Australia, Canada, England, France, Germany, Israel, Italy, Japan, South Africa, Switzerland and the United States. In addition to the description of the law in these jurisdictions, the book contains an in-depth analysis of the common issues and the responses to them, in light of desired policies. Accordingly, an evaluation of the various rules and proposals for reform are integral parts of the study. The book is divided into four parts. Part I is an overview of the various legal systems and fundamentals in banking and payment law, in an overall historical context. Part II deals with the banking relationship, within which collections and payments occur. It highlights the customer contract, the deposit transaction, the mandate authorizing bank collections and payments, and the debt resulting from entries to the current account. Part III covers the performance of the mandate. It discusses extensively laws governing the payment and collection of cheques and credit transfers, in the context of actual clearing and settlement mechanisms, particularly large-value transfer systems in developed countries. Part IV is on payment systems misuse through fraud, either in the initiation payments or in misdirecting them. It discusses cheque forgery, unauthorized electronic funds transfers, forged cheques indorsements, and misdirected funds transfers. A unique feature of the work is the integration of a cohesive analytic perspective, both doctrinal and policy-oriented, into a comparative descriptive framework. The book searches for a universal `law merchant' transcending the boundaries of the various legal systems. It is aimed at the banking and payment law specialist and student as well as to the general comparative lawyer. Its focus on both present law and reform makes it useful to both the academic and practising lawyer.