Case law

  • Case Details
    • National ID: 265/2005
    • Member State: Spain
    • Common Name:“Caja de Madrid, S. A.” v Donato and Carmela
    • Decision type: Other
    • Decision date: 27/04/2005
    • Court: Audiencia Provincial (Appellate court, Barcelona)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Distance Selling Directive, Article 8
  • Headnote
    1. The titleholder of a credit card has the right to stop straight away the charged made in a fraudulent manner on his account.
    2. According to the Recommendation 590/88 of 17th November of the European Council, the transactions made with a credit card have to be recorded in a register and the client has to be provided with receipts so each transaction can be verified. The common banking practice fulfills this rule not only by sending periodical bank statements but also by providing the client with receipts when withdrawing money from an automatic cashier.
  • Facts
    A bank asks two clients for the payment of 26.030,11 euros in connection to the bank account that they opened on 13th August 1999, according to the certification provided by the bank on the expenses incurred by the clients on their credit card. The defendants deny the existence of any debt but without presenting any specific evidence. The court accepts the existence of evidence according to the documents provided by the bank since, following the banking practice, the transactions seem to correspond to real withdrawals of cash at automatic cashiers.
  • Legal issue
    Although the judgment is concerned mainly with the issues of evidence, its reasoning is of interest in connection with the new rules after the transposition of the Directive 97/7/EC. According to court, “the contract made by credit is not ruled in our Law, except for what is established in art. 46 of the Law 47/2002, of 19th December, of the Law reform 7/1996 on Retail Trade and that regulates the cases where there are charges made in a fraudulent way or undue, giving the holder the right to stop it immediately. Moreover, it adds that “the interpretation of situations in dispute that the use of a credit card could generate will have to be judged having into account the Recommendation 590/88 of 17th November of the European Council, from which the transactions made with a credit card have to be recorded in a register so that there is evidence in order to rectify potential mistakes, and the individual has to be provided with a statement of the transactions that have been made so that they can be checked against the receipts and the complains can be then verified if needed”.

    On this grounds it concludes that the evidence of credit card transactions provided by the bank, in which no particular establishment is identified makes it clear according to “the common banking practice” that these receipts show cash withdrawals from automatic cashiers. Since the defendant, the client, only denies the debt and since it is a “common banking practice of general and public knowledge” that banks provide with statements of the accounts, and despite that the documentation is provided only from one party, it is good enough as proof. Neither the claims of having moved on the part of the consumer (which had not been communicated diligently to the bank), nor the lack of receipts for each transaction made in an automatic cashier (which would be a negligence on the part of the client for not having kept them) exempt the client from paying back the debt that is considered proved.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result