Droit Bancaire

Appearance and fraud

On 17 June 2026 the French Cour de cassation, commercial, financial and economic chamber – plenary session (pourvoi N° 24-13.306 – B+R), stated that, if a payment made bona fide to an apparent creditor is valid, shall not be considered as an apparent creditor a person that acts using identity fraud. This case illustrates that it is, for the judge, all matter of perspective and facts, given that fraus omnia corrumpit.

Article 1342-3 of the French civil Code states that: “payment made in good faith to an apparent creditor is valid.” Two concepts underpin this decision, not only appearance but also identity fraud, which is, for this latter, an increasing phenomenon due to the development of Internet and cyberattacks.  

Appearance is one of the most important correcting mechanism, used to foster economy and ensure legal safety at the same time in a continuing equilibrium. The idea here is to maintain a contractual relationship created by a legitimate appearance, making useless by the believer to make any checks. Traditionally presented by an author as qualifying as a quasi contrat (See Droit des obligations, A. Bénabent, LGDJ, e.g. 15^th ed. 2016, N°489 p.375 et seq.), the appearance theory also needs the existence of good faith of the believer.

The pourvoi raises an interesting question of level of certainty, question that could be relevant within the assessment of the good faith or fraud. In practice, the believer has to reach a sufficient level of certainty created by the appearance to believe that the contractual relationship is safe. It should be specified that the adage error communis facit jus should also trigger the application of the theory, as a situation where mutual belief is created by an invincible mutual error (without fraud).

In this perspective, Fraud is also a correcting mechanism, to some extent used praeter legem, in a legal background, to ensure balance, equity and public order as a whole. One of the most important application of this theory is the mandat apparent, when a person appears to act in fact on behalf of another person, without a proxy. In both cases, the mechanism is used a prosteriori either to validate a legal situation or to render it null, voidable or non-opposable against third parties.

It should be noted that a factual relationship (faits juridiques) cannot be criticized for denaturation, contrary to a legal relationship based on a writing (different kind of scrutiny: recurrent position of the Cour de cassation, See La technique de cassation, M.N. Jobard-Bachellier, X. Bachelier, J. Buk Lament, Lefebvre Dalloz, 10^th ed. 2024, N°81, p.151). In the present case, the written in question was a RIB (Relevé d’Identité Bancaire), containing the IBAN (International Bank Account Number) used to make an international wire transfer, which appeared to be fraudulent. As fraud is considered as known by the debtor of the payment, article 1342-3 is not applicable but fraus omnia corrompit, instead. On the basis of the said adage, the first payment should be considered as non-opposable to the creditor, who is entitled to receive his payment. The debtor of the payment should, in this case, make a knew payment, rather on this basis than on the ground of He who pays badly pays twice (Qui paye mal paye 2 fois), applicable in a different situation (1342-2 of the French civil Code).

Up to date 17 June 2026.

Bank wire transfer and French draft bill dated 30 September 2025

On 30 September 2025, a group of members of the French Assemblée Nationale (députés) filed a draft bill related to a process recall applicable to bank wire transfer.

On the basis of the current increase of cybercriminality, an exception to the irrevocable feature of a bank wire transfer under French law is proposed to be introduced associated with a control by the Autorité de contrôle prudentiel et de resolution (ACPR). To trigger the said exception, a request to recall the funds has to be made within 48h00 hours following the execution of the challenged bank wire transfer. The effect is to put the challenged bank wire transfer on hold, the following of the process having to be decided on further conditions stated by a Decree to be taken in Conseil d’Etat.  

It has to be stressed that, contrary to what is generally presented, a bank wire transfer is by essence revocable (see Droit Bancaire, T. Bonneau, LGDJ, 14^ème éd. 2021, p. 483 n° 647). This rule follows the general regulation of the mandat governed by article 1984 of the French Civil Code et seq. and more specifically articles 2003 and 2004, this latter stating that the mandator is entitled to revoke his procuration whenever it suits him.

Technically speaking, this specific banking right of revocation is different and more theoretical since applicable only before it reaches the bank of the order giver. As orders are now mostly given by Internet, it is difficult to contemplate a situation where the right of revocation can be exercised before the order reaches the bank, except maybe if for a technical reasons the order is eventually not technically transmitted and the giver order forgoes to send again the order. Another possibility: a banking wire transfer being sent by email (hard copy scanned), received by the bank, still not executed whereas the giver order canceling the order with the consent of his bank, due to the 1-business day period on the shoulders of the bank to execute a bank wire transfer (article L133-13, I of the French Monetary and Financial Code).

In this perspective, it has to be specified that this 1-business day period starts the business day after reception of the order which could mean effectively 2 days if the order is for example received in the morning or even more, if according to article L133-9 of the French Monetary and Financial Code, the order is received by the bank a day which is not a business day, the bank having to deal with it the following business day as it is deemed to be received such postponed day.

This could lead to the opening of a 3 calendar days period, the latter being a business day during which the order has to be dealt with. It also has to be mentioned that the obligation of the bank is to deal with the bank wire transfer in such a way that the beneficiary of the bank wire transfer is credited the said day (even if there might be a value date associated with it, not dependent on the bank of the giver order).

In this perspective, it is normally forbidden for the bank of the beneficiary to insert a value date different from the date of the reception of the funds (article L133-14 of the French Monetary and Financial Code states that the value date of an amount credited on the account of the beneficiary cannot be subsequent to the date corresponding to the business day during which the amount of the transaction is credited on the beneficiary’s bank account). Assuming that this is the case, which is the normal course of business within the SEPA Zone (Single European Payments Area), there should be no difference between the day the order is given and the day the amount is credited on the account of the beneficiary, as applicable in accordance with the 1 business day period regulation. In addition, the current regulation practice leaves the possibility for a bank to recall a bank wire transfer already transferred, on a contractual basis for commercial purposes, based on article L133-8 IV of ther French Monetary and Financial Code generally on te ground on fraud.

Now, the draft bill aims at giving a legal frame to what could be considered as one of the most important exceptions to what underpins the banking regulation payments. It is generally and historically accepted that the ground of the irrevocable feature of a bank wire transfer by credit card or debit card is based on the theory of the abstract act (acte abstrait), which means that a payment (bank wire transfer or payment by credit or debit card) is abstract of any other elements of the underpinned commercial regulation that would impact its enforceability (for e.g. Droit commercial, Instruments de payment et de crédit  - Titrisation, M. Jeantin, P. Le Cannu, T. Granier Dalloz, 7^ème éd. 2005 see p. 144 n°210 et seq., quoting classically Rives-Lange, Les engagements abstraits pris par le banquier en droit français, Travaux de l’Association Henri Capitan T.XXXV, 1984, p.308). This principle is clearly applicable to payments operations as a whole, article L133-3 of the French Monetary and Financial Code stating that a payment transaction is an action consisting in transferring, or withdrawing funds, regardless of any underpinned obligations between the payer and the beneficiary, initiated by the payer, or on his behalf or by the beneficiary. 

It is now proposed to insert several articles, as follows:

- a new article L. 133-8 V in the French Monetary and Financial Code.

“By way of derogation to articles I to IV, the user of payments services can, in the event of manifest error or qualified fraud, request to his payment services provider the initiation of a fund recall process.

This request has to be made within a 48h00 timeframe following the execution of the wire transfer.

The availability of the funds on the accounts of the beneficiary is suspended following further conditions set by Decree taken in Conseil d’Etat.”

-a new article L. 133-23-1-1 in the French Monetary and Financial Code.

“I. – The payment services provider of the giver order has to transmit without delay the request of the funds recall to the payment services provider of the beneficiary.

II. – The payment services provider of the beneficiary has to block temporarily the funds corresponding to the challenged bank wire transfer, waiting for the resolution of the process.

III. – In the event of a statement of fraud or manifest error, the amount of the bank wire transfer is restored to the giver order.

IV. – A decree in Conseil d’Etat specifies the terms of instruction of the request, applicable time frame and available recourses to the parties.”

-“Art. L. 612-39-1. – The Autorité de contrôle prudentiel et de résolution overseas the respect by the payment services provider of the obligations stated in articles L. 133-8 and L. 133-23-1-1. In the event of beach, it can impose sanctions of article L.612-40.”

If this new regulation is enforced, not only the customer but also the professional will benefit from the fight against cybercriminality by the granting of a specific legal frame based on the old saying fraus omnia corrumpit and the recognition of an exception based on the manifest error, already known and applicable in capital markets. 

Up to date 30 September 2025.