RESPONSIBILITY OF BANKS AGAINST COMPUTER CRIMES OF TRANSFER OF FUNDS: CURRENT POSITION OF THE COURTS OF JUSTICE
Alfredo Niklitschek Dabike.
Faced with a recent case of a constitutional action made by a client against a Bank, the Illustrious Santiago Court of Appeals ruled that, in a case of cybercrime involving the transfer of funds, the Bank is the only one affected by the deception that allowed said abduction, given its status as owner of the deposited money, the bank has the duty of custody, having to adopt, for that purpose, all the necessary security measures to adequately protect the funds under its protection; therefore the Bank must return the stolen funds to its client.
MAIN CONSIDERATIONS AND RESOLUTION OF THE ILLUSTRIOUS SANTIAGO COURT OF APPEALS THAT ORDERED THE BANK TO RETURN THE UNLAWFUL TRANFER OF FUNDS THROUGH COMPUTER FRAUD TO ITS CLIENTS.
The Illustrious Santiago Court of Appeals, Appeal of Protection Income Role No. 3,776-2019.-
A client of the Bank filed an appeal against the latter for considering illegal and arbitrary the refusal to grant the return of the funds that were stolen through computer fraud, which would have affected his constitutional guarantee established in paragraph 24 of the Article 19 of the Constitution of the Republic (the right to property).
Knowing the facts and background of the case, after the hearing of the case and the allegations of the parties, the First Chamber of the Illustrious Santiago Court of Appeals, by unanimous ruling dated July 3, 2019, resolved to accept the appeal for protection and ordered the restitution of the stolen monies, amounting to $ 6,999,998.-, after deduction of the equivalent of UF 127 that were paid to the recurring customer by the insurance company. In order to render this decision, the court took into consideration the following arguments, which we proceed to highlight:
With respect to the relationship between the Bank and the client, “6 °)… it is of the essence of the aforementioned contract, the delivery of money to the Bank, under the modality of the deposit figure (defined by Art. 2211 of the Civil Code). However, in the present case, upon depositing the deposit in a sum of money, it is presumed that the depositary can use it, being obliged to return the same amount in the same currency (“irregular deposit”). Thus, the deposit is fungible, becoming the depositary owning it, the deposit agreement being a title and not of mere possession, as in the ordinary deposit. As a consequence thereof, the Bank is obliged to return the amounts deposited, even if it is not the same coins or bills, because it is the deposit of fungible things and whose property it had acquired; ”
The Court continues to point out, “7th)… the money withdrawn from a bank checking account through computer fraud […] does not correspond to specific flows of the current account, as it is the deposit of a gender and not certain bodies, which are also fungible goods (Art. 575 of the Civil Code)… ”
For these considerations, the court stated that “8 °)… even if the computer fraud has been executed through the irregular use of the personal bank data and keys of the appearing company, the subtracted is money and fungible, which results in not only legal but physically impossible to sustain and even less prove the exact identity of the stolen species through the fraud perpetrated, a circumstance that leads to the conclusion that the only one affected by the aforementioned deception is the Bank appealed, given its ownership of the deposited money, who ultimately falls to the duty of effective material custody of the latter, having to adopt, for that purpose, all the necessary security measures to adequately protect the money under his safeguard. ”
This is consistent with what was previously sentenced by the Supreme Court in the Appeals No. 2,196-2018 and 29,635-2018.
This judgment was challenged by the Bank through an appeal to be known and resolved by the Supreme Court, which is still pending.
Hence, it is possible to conclude that in recent times the Courts of Justice are inclined to hold the Bank responsible in case of theft of money for computer fraud. As a result of the foregoing, we highlight the notion that the judgments have adopted regarding the deposit of monies made by the clients to the Bank, since according to this view, the Bank, in addition to the duty of custody that obliges it to adopt security measures necessary to protect the money, would be the sole owner or owner of the money delivered, and as such, the only victim to suffer for the unlawful transfers made by way of deception or computer fraud, a negative consequence that cannot be transferred to the client.
At Palma Edwards Veszpremy, we are constantly attentive to the challenges that are generated in the banking market, and this permanent study includes the sources of conflict raised recently, as in the case mentioned, in order to offer our clients the ideal tools to face these challenges and ideally avoid them.