Federal Court Enhances the Rights of Persons Betrayed at an ATM

It's one of the nightmares of modern German life: Your "plastic money" was stolen and your bank account depleted. The BGH with its judgment of November 29, 2011 (re XI ZR 370/10) now helps bank customers to more rights against banks that demand too much in damages.

Sam's bank issued him a credit card with the ability to withdraw funds from an ATM through this card and a PIN. The STC of his bank determined that the daily limit for withdrawals was € 1,000 per day. He was further obliged to inform his bank without undue delay of the loss or theft of the credit card. Until this report, Sam was liable for a sum up to € 50 per withdrawal.

One fine night, six withdrawals of each € 500 were taken from several ATMs. Sam's PIN was used each time. The bank directly debited his account with these withdrawals. Sam challenged the direct debit and cancelled the credit card.

Sam's bank sued him then for damages and disbursement of the withdrawn money. The bank was of the opinion that he did not keep his PIN secret. Lower courts agreed with the bank, so that the Federal Court of Justice was called.

Generally, prima facie evidence exists that the card holder personally withdrew money at an ATM, when his PIN was used. However, as in this case, it can be assumed that the card and PIN were not correctly stored so that a third person could come to know the PIN. This demands that the original card be used for withdrawing. When using a skimmed card (i.e. pirate copy), the typical way things happen does not show the card and PIN were stored together. When the bank alleges the misuse of the original bank card leading to illegitimate withdrawals, it has to prove this. In other words, when you can show that the events were typical for a skimmed card i.e. you still have the original one, you bank has to prove that the original bank card was used. When the bank shows evidence of this fact, you will be held liable.

Whenever a bank uses a valid stipulation in its STC, it is bound by it. This means in this case, that the greatest liability until report of loss or theft is € 50. This is also true when the bank customer neglected to carry out due digilance. Therefore, Sam is only liable for € 50 to his bank.

Last but not least, the daily withdrawal limit in STC is also for the protection of the customer. Sam's damages are limited to the daily maximum, when his bank did not prevent withdrawals beyond the agreed amount.

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