Two spouses from Lazio had a shared (joint) current account, with the related debit card. In September 2013 they realized that in the 2 previous days the account had gone from € 23,000 in assets to € 0.00: stolen ATM. Immediately the complaint and the blocking of the card but the institution refuses to reimburse the stolen sums. Indeed claims that “The ATM card alone was a valid document for withdrawal, without the need for additional identity documents”.
Stolen ATM: yes to reimbursement of withdrawals prior to the report
In the 1st and 2nd degree of judgment, the two spouses also lose their causes. The reasons: lack of proof of the diligence used to prevent the theft or cloning of the card and late submission of the report. The burden of diligence was not fulfilled according to the court and the Court of merit. For them, in fact, the bank is only liable for undue withdrawals made after the blockade. So they concluded, “There was no liability of the bank prior to the blocking of the card”.
The Court of Cassation
However, the entire system is not shared by the Supreme Court, which annuls and postpones for a new judgment. The ruling of the Court of Cassation (Civil Ord. Section 3 Num. 9721 Year 2020) instead accepted the appeal of the two spouses. Which in a nutshell has ordered that the customer only responds for € 150, except in case of willful misconduct or serious imprudence. A bank that therefore responds to abusive withdrawals made by third parties with its own ATM, even before the block. As for the burden of proof (i.e. that the withdrawal is not the work of third parties), this falls on the bank. It reads expressly: “The bank must therefore provide proof of the traceability of the transaction to the customer”. Therefore the thesis for which stolen Bancomat is confirmed: yes to the reimbursement also of the withdrawals prior to the report.
More on the sentence
For the Court of Cassation in transactions carried out with the use of electronic instruments, the risk of undue withdrawal falls within the professional activity of the lender. This is because predictable (it is the so-called risk of the trade) and avoidable by adopting appropriate measures. “Basically, on the one hand, the bank bears the burden of diligence to prevent abusive withdrawals. On the other hand, the burden is always borne by the bank to demonstrate that the withdrawal is not the work of third parties, but is attributable to the will of the customer. Finally, the latter suffers the consequences of the loss if, due to gross negligence, he gave rise to or aggravated the illegitimate withdrawal “. An understandable conclusion, aligned with the same interest as the Post Office and credit institutions aimed at obtaining users’ confidence in the security of the system.