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16 April 2004
In the case submitted to the Federal Supreme Court, the client claimed that a withdrawal of Sfr15,700 was wrongfully made from his account.
The general terms and conditions of the debit card stated as follows:
"Withdrawals upon presentation of the debit card and provision of the PIN code are possible without further identity control. For amounts below Sfr10,000 no signature or proxy is required. The bank nonetheless reserves the right to require proof of identity and/or a signature... Damages suffered as a result of abuse of the PIN code will be borne by the client, except where the bank is at fault."
The bank claimed that on the basis of these general terms and conditions, it did not have to require a signature from the client for the withdrawal in question.
However, the Federal Supreme Court ruled that these general terms and conditions had to be interpreted against the party which drafted them, and that the client would have understood in good faith that a signature would also be required for withdrawals of over Sfr10,000.
In the case at hand the bank employee was apparently provided with a drivers licence as proof of identity, but did not retain a copy of it.
The bank bore the burden of proving that it had performed its duty of identification - something which it could not do. The bank was therefore ordered to reimburse the amount withdrawn to the client.
Banks are advised to ensure that their general terms and conditions for debit cards are sufficiently clear as to when and how the bank will require additional identification to the PIN code, and ensure that their employees abide by it.
For further information on this topic please contact Emmanuel Genequand or Guy-Philippe Rubeli at Pestalozzi Lachenal Patry by telephone (+41 22 737 1000) or by fax (+41 22 737 1001) or by email (email@example.com or firstname.lastname@example.org).
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