With Ordinance No. 17415 of 2024, the Court of Cassation addresses the issue concerning the bank's liability for executing a bank transfer to an IBAN not attributable to the indicated recipient.
The case originates from a compensation claim against a credit institution that executed the payment of compensation provided by an insurance company to a different person than the one indicated. The insurance company had ordered the credit institution to execute the transfer to the real beneficiary of the compensation but mistakenly indicated an account held by a third party.
Both the Tribunal and the Court of Appeal found the bank responsible, and the bank subsequently appealed to the Court of Cassation. Following a thorough review of the applicable regulations, the Supreme Court ruled as follows: when, as in this case, "the recipient's account is held with a service provider with which the legitimate beneficiary of the payment has no contractual relationship, the liability incurred by the intermediary can be classified as contractual based on the theory of qualified social contact."
Indeed, this theory imposes a professional duty of protection on the bank towards all parties involved in the successful completion of the transaction. Thus, the legitimate beneficiary who did not receive the payment can act against the intermediary by invoking non-contractual liability under Article 2043 of the Civil Code, with all the related consequences regarding the burden of proof and the compensability of the damage suffered.
In conclusion, the Supreme Court states the following principle of law and rejects the appeal filed by the resistant intermediary: "In matters of bank liability for operations carried out using electronic means, when the nominally indicated beneficiary of a payment to be executed via bank transfer does not have a credit account with the intermediary bank, so the specific provisions of Article 24 of Legislative Decree No. 11 of 2010 are not applicable, common law rules apply. The burden falls on the intermediary, responsible according to the theory of 'qualified social contact,' to prove that it carried out the requested payment operation, adopting all necessary precautions to avoid the risk of erroneously identifying the beneficiary, or at least, to have acted to enable the identification of the
party actually receiving the payment intended for the original beneficiary, including, if necessary, by communicating the relevant personal or corporate data.
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