The Comparative Analysis of Human Mistake and Technical Error during a Course of Payment through Debit Cards in the Iranian and American Banking Law Systems

Document Type : Research Paper

Authors

1 PhD Candidate in Private Law, Department of Law, University of Isfahan, Isfahan,Iran.

2 Associate Professor, Department of Law, University of Isfahan, Isfahan,Iran.

3 Assistant Professor, Department of Law, University of Isfahan, Isfahan,Iran.

Abstract

Among the most challenging matters of banking law has always been payments done through banking cards. In the wake of the prevalence of debit cards in everyday banking system in Iran, this research’s main query is to analyze human mistake and technical error during a course of payment, and discern thereupon their difference with the unauthorized fund transfer. This question is analyzed through a comparative analysis with the banking system of the Unites States of America. This analysis can give a clear understanding of the legal responsibilities of the bank and card holders in the Iranian banking law in case of either human mistake in concluding a wrong payment order by the card holder, or technical error run by the operating bank. As the outcome of this analysis, in case of human mistake in concluding the wrong payment order by the card holder, bank has no legal responsibility before the card holder, but in case of any mistake and error in running the payment order, bank holds contractual liability and strict liability before the customer.

Keywords

Main Subjects

References

1.Ahmadi Rad, H. (2012), Legal effects of electronic transfer funds in relation to financial institution, PhD thesis in Private Law, University of Shahid Beheshti .(in Persian)
2.Abhari, H. and Rahimi, S. (2014), Legal and Jurisprudential review of Article 265 of the Civil Code, Quarterly Journal of Islamic Jurisprudence and Law, Vol. 10, No. 36, pp. 11-32. (in Persian)
3.Elsan, M. (2011), The law of bank payments, Tehran: Monetary and Banking Research Institute.(in Persian)
4.Elsan, M. (2012),  E-commerce law, Tehran: S.A.M.T.(in Persian)
5.Elsan, M. (2013), Internet banking law, Tehran: Monetary and Banking Research Institute. .(in Persian)
6.Badini, H. Shabani Kondsari, H. and Radparvar, S. (2012), Strict liability; principles and examples, Journal of Comparative Law Studies, Volume 3, Issue 1, Pages 19-36. .(in Persian)
7.Barikloo, A. (2008), Civil responsibility, Tehran: Mizan.(in Persian)
8.Bigdeli, S. (2014), Adapting the view of André Tunc on the basis of civil and contractual liability with the position of Iranian civil code , Journal of Islamic Law, 11th Year, No. 2, pp. 135-163. .(in Persian)
9.Jahan, Z. and Komeijani, M. and Karari, M., (2013), Short-term and medium-term forecasting of banking transactions using artificial neural networks, the Second Conference on Electronic Banking and Payment Systems, Tehran: Monetary and Banking Research Institute. .(in Persian)
10.Hoseinian, A. (2011), Support of consumers of e-banking services, MSc thesis, University of Shahid Beheshti .(in Persian)
11.Rezaee, A. (2008), E- commerce law, Tehran: Mizan.(in Persian)
12.Sardooee Nasab,  M. (2014), Electronic commercial documents, Tehran: Mizan.(in Persian)
13.Farhang, M. (1992), Great encyclopedia of  economic sciences, Tehran: Alborz.(in Persian)
14.Katoozian, N. (1999), Civil liability, Tehran: Tehran University .(in Persian)
15.Katoozian, N. (2008), General rules of contracts, Tehran: Corporation of publication(in Persian)
16.Mohaghegh Damad, S.M. and Esaee Tafreshi, M. (2002), Civil liability area resulting from breach of obligation, Journal of  Mofid, No. 33, pp. 21-40 .(in Persian)
17.Mosavian, A. (2004), Credit Cards in Banking without Riba, Quarterly Journal of Islamic Economies, No. 13, pp. 43-74.(in Persian)
18.Miri, H. (2015), Civil liability of Internet Service Providers, Tehran: Institute for Legal Studies and Research of Knowledge City.(in Persian)
19.Yazdian, A. (2007), General rules of civil liability, V.1, Tehran: Mizan.(in Persian)
20. Algudah, Fayyad (1992) The liability of banks in electronic fund transfer transaction. Phd thesis, University of Edinburgh.
21.American Bank (2016) "Framework contract for payment services", available at: https://www.americanbank.com.2017/02/15
 22.Baker, Donald I. Brandel, Roland E. (1992) "Reviewed Work: The Law of Electronic Fund Transfer Systems", Review by: William B. Davenport, The Business Lawyer, Vol. 47, No. 3, pp. 1361-1394.
23.Brandel, Roland E.; Olliff, Eustace A. (1979) "The Electric Fund Transfer Act: A Primer", Ohio State Law Journal, vol. 40, no. 3, pp. 531-567.
24.Brindle. Micheal, Cox. Raymond (2004) Law of Bank Payments, Third edition London: Sweet & Maxwell.
25.Clarke, robert & Zywicki, Todd j (2013-2014) "Payday Lending, Bank Overdraft Protection, and Fair Competition at the CFP", Review Of Banking & Financial Law Vol. 33,PP.235-281.
26."Code of Federal Regulation"(C.F.R) (1937) last update(2014). executive departments and agencies of the federal government of the United States. Available at: http://www.ecfr.gov/cgi-bin/ECFR?page=browse.2016/06/11.
27."Electronic Fund Transfer Act"(E.F.T). 15 U.S. Code Subchapter VI. (1978) Congress of United States of America.Available at:  https://www.law.cornell.edu/uscode/text/15/1693. 2016/06/05.
28.Furletti, Mark (2005) "The Laws, Regulations, and Industry Practices That Protect Consumers Who Use Electronic Payment Systems: Policy Considerations", Payment Cards Center, Federal Reserve Bank of Philadelphia.PP.1-23.
29.Gkoutzinis, Apostolos (2006) Internet Banking and the law in Europe, England: Cambrige university press.
30.Laidlaw, Andrew  (1992) "EFT and EDI - Legal Consequences of Fraud, Malfunctions and Mistakes in Payment Card Transactions", International year book of law computers and technology, Volume6.
31.O’Mahony, Dinal; Peirce, Michel; Tewari, Hitesh (2001) Electronic Payment Systems for E-commerce, UK, London, Artech house.
32.Oxford English Dictionary (last update2016) Oxford University Press. Available at:  http://www.oed.com/.2017/01/17
33.Sulivan, Richard J. (2010),"The Changing Nature of U.S Card Payment Fraud: Industry and Public Policy Options", Economic Review, Second quarter 2010, Federal Reserve Bank of Kansas City.
34.Taffer, Lewis M. (1979), "The Making of the Electronic Fund Transfer Act: A Look At Consumer Liability and Error Resolution". University of San Francisco Law Review, Vol.13, Num.2, P. 231.
35."Uniform commercial code" (U.C.C). (1952). Last seen (07/05/2016). The American Law Institute and the National Conference of Commissioners on Uniform State Laws. Available at:  https://www.law.cornell.edu/ucc.2016/05/07
36.UNCITRAL Model Law of International Credit Transfer. (1987) United Nation. New York: United Nation Publication.
37.Uniform Computer Information Transaction Act (UCITA). (1999). Last reform 2000. National Conference of Commissioners on Uniform State Laws (NCCUSL).
38.Uniform Electronic Transactions Act (UETA), (1999). National Conference of Commissioners on Uniform State Laws (NCCUSL).
Comparative Law Review
Volume 8, Issue 2
Autumn & Winter
October 2018
Pages 545-564

Files

Share

How to cite

Statistics