No wonder fraud is on the increase

Not half as much as the rubbish on usenet.

It's also the "opinion" of APACS, and the "opinion" of the banking code, and the "opinion" of my bank when it happened to me. They carry more weight with me than your "facts".

"John Boyle" wrote

You said that the outcome would be "cardholder out-of-pocket", because that is what the law says, even though the Banking Code says otherwise.

"John Boyle" wrote

"John Boyle" wrote

Yes, by the cardholder - but not by the bank! [See below.]

"John Boyle" wrote

That'll be because the Ombudsman's decision is binding on the bank, isn't it!

"John Boyle" wrote

Yep, but that would only happen *if* the Ombudsman *ignored* the Banking Code! [Hence me asking you if you think that the Ombudsman would ignore the Banking Code in his determination...]

If you still don't believe me, or the BBC, here's some suggested reading for you to get your "facts" straight:

"The liability rgime is simple, although its implications do not seem to be widely understood. If the cardholder denies having entered into a remote card transaction in which the relevant card information was provided, and there is no evidence of delivery of goods to the customer or voucher signed by the customer, the bank has no basis on which to debit the customer's account. "

Or do you know better than legal academics as well?

In message , Andy Pandy writes

Try reading all those sites again. None confer the legal loss to the banks and nowhere does it say the charge to the account is incorrect. The banks merely indemnify the card user.

In message , Andy Pandy writes

That well known article is merely that, an article in which authors exrpess an opinion. Even the overview at the beginning makes this clear "Banks must prove the authenticity of their customers' handwritten instructions if challenged, but for telephone and online banking some banks are adopting terms which could make customers liable for transactions they have not authorised. Neither the security technology available to customers, nor the security techniques that ordinary customers can be expected to use, are adequate to protect customers from this risk of liability, and the terms in question are arguably unfair."

Note 'arguably'. As said, it is opinion.

In message , Tim writes

The banking code does not say what the law says. It says what the banking code says. I am not arguing about what the banking code says. I am saying what the law says. Public Relations determine that it is in the banks interest to appear in a better light than by enforcing the law, therefore they have conceived 'the banking code' to indicate what their practice will be.

Within the scope of the Ombudsman it is, (i.e. the Bank can not appeal an ombudsman decision to the ombudsman) but AFAIAA there is nothing to stop a bank taking the matter to law if it thought it right. It would be a very extreme case for them to even consider doing this and I cant see it happening unless a future ombudsman is completely loopy.

Why? The client could make a complaint that is without foundation and which Mr O rejects. Mr C can still go to court if he want.

You are confusing the role of Mr O, the Banking Code, and Law.

In message , Andy Pandy writes

In message , John Boyle writes

In support of your position, John, I would plead with others not to confuse financial liability under contract law or consumer legislation, with the criminal law.

The OP stated that a friend had been the victim of a "bank fraud" when credit card details were misused and goods were obtained by someone else. That description of "bank fraud" is misleading.

The fraud (obtaining property by deception, s15 Theft Act 1968) is actually committed upon the retailer, who is the one induced by a deception to despatch goods to someone else. Neither the bank nor the credit card holder have parted with any property, so nothing has been "obtained" from them and therefore no offence is committed against them by the original perpetrator.

The banks often choose, for good PR reasons, to indemnify retailers who are the victims in good faith of credit card deception. Were they not to do so, fewer retailers would accept their credit or debit cards with consequences for the economy and banking system.

In terms of criminal law, the retailer is the victim. Financial liability for losses, OTOH, is not a matter for criminal law.

"John Boyle" wrote

"John Boyle" wrote

Are you now changing your mind? ...

You previously said: "I am saying that the cardholder is the victim AND the one out of pocket".

The Banking Code says otherwise. You now say that the bank's practice will be per the Banking Code...

Well, which is it? - Is the cardholder out of pocket or the bank?

"John Boyle" wrote

But we are talking about where the bank ignores the Banking Code, in a case where "someone else uses your card details without your permission, and your card has not been lost or stolen". That is *not* "without foundation"!

"John Boyle" wrote

I don't think so.

The authors being legal acedemics. What are your legal qualifications?

Oh dear. That is talking about telephone and on-line banking! We're discussing card use!

Try gett "No I dont mean that. I am saying that the cardholder is the victim AND the one out of pocket (based on what the OP wrote)."

That hardly "supports his position", he was claiming the cardholder is the victim of the fraud!

I was claiming the bank was the victim of the crime, but I can accept that the retailer being the victim makes more sense.

Indemnifying the *retailer*, not the cardholder. Yes, makes sense.

So the retailer is the victim of the crime and the bank is the financial victim.

In message , Andy Pandy writes [...]

Yes.

I wouldn't choose to use the word "victim" for the bank because the issue is one of liability for consequential financial loss. The bank's contractual relationship with the cardholder (see T&Cs regarding misuse) is also relevant in arriving at any final settlement.

Fair enough.

Of course, but the law can override the T&C's.

In message , Andy Pandy writes

Incidentally, it seems that the new Fraud Act 2006 has just been granted Royal Assent. It is intended to unify and supersede previous criminal deception offences under the Theft Acts, amongst other things. I suspect that this will prove to be a key piece of new legislation and will be a fruitful source of income for some lawyers.