Bank not liable for false signature

September 09, 2009 6:27 AM

Maduro & Curiel’s Bank (MCB) did not fail in its duty of due care towards Calamari. That is the judgment of the Court in civil proceedings in appeal, pronounced on August 25.

It concerns two checks written out to bearer, provided with a false signature, cashed at the expense of Calamari. Calamari Management Company N.V. bears the trade name of Termigon and is described as “Management Company” and economic and management consultancy with the Chamber of Commerce. Owner is Eduard Dunker.

Calamari holds MCB liable for the loss because the bank would have acted negligently. But the Court of Justice finds that the signature placed is very similar to the signature of the authorized Director. The judgment states: “The duty of due care of the bank does not go so far that it always has to verify whether the payment requested fits in the normal payment pattern. Moreover, Calamari did not notice that the checkbook was missing until after the checks had been cashed.”
The Court of Justice hereby upholds the judgment given by the Court of First Instance (CFI) on January 28, 2008.

Fraud committed for over 18 thousand guilders

On March 1, 2007, two checks of Calamari, written out to bearer, were cashed. It concerned a total amount of 18,724 guilders and fifty cents. The company filed a report with the police regarding this fact within one week. According to the general terms and conditions of the bank, a customer has to retain forms with due care. In case of loss or theft, the bank has to be notified in writing.

“Until the moment the bank receives this notice, the consequences of the use of these forms are for account and risk of the customer, unless the customer proves that the bank can be attributed any guilt,” the judgment continues. Upon receipt of such notice, the bank will attempt as much as possible to prevent prejudice of the customer. Within the framework of its duty of due care, the bank has to check properly whether the checks offered have been written out and signed by a person authorized to sign for the account.

The Court of Justice finds, as did the CFI, that the signature on the checks is very similar to the signature of Calamari’s Director. The judgment adds: “That the signatures placed are not entirely identical, as Calamari brought forward in the explanation, does not alter this. For small deviations in it are not unusual.” Calamari doubts the fact whether the bank tellers of MCB really verified the signature.

But the Court of Justice holds that this does not alter the fact that the signature appeared very similar. In addition, the company is of the opinion that MCB should have been extra alert, because the amount to be paid deviates from the normal payment pattern. Moreover, the company “very rarely writes out checks to bearer”. And if this is done, it is not for an amount exceeding three hundred guilders.

In addition, Calamari brings forward that MCB should have been surprised that the same person came to cash a check twice on the same day. “This should have raised suspicion,” according to the company’s owner. But the Court of Justice holds that the duty of due care of the bank does not go so far that when verifying checks offered to be cashed it has to be verified always whether the requested payment fits in the normal payment pattern of the accountholder.

Also the fact that the two checks were offered at two different branches of MCB by the same person on the same day is not as remarkable in itself. It is also observed in this respect that the checkbook should already have been missing since February 28, because the employee committing the fraud then left the employment. “Calamari did not notice it was missing until after the employee who managed the checkbook had left his employment and after the checks had been cashed.

This means that Calamari apparently supervised the keeping of the checkbook inadequately after the person charged with the management hereof had left,” according to the judge.

(Source: National newspaper Antilliaans Dagblad)

September 3, 2009

Molly Steward, partner at the law firm VanEps Kunneman VanDoorne, represented Maduro & Curiel’s Bank N.V. in these proceedings. Calamari Management Corporation N.V. was represented by Mr. A. Huizing and Mr. E.J.J. Huizing.