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From the magazine SZW-RSDA 2/2018 | S. 156-163 The following page is 156

Legitimationsprüfung und Risikotransfer bei E-Mail-Zahlungsaufträgen

Fraudulent falsifications of payment orders have been a long-known issue in banking. Pursuant to statutory law banks are obliged to verify the authenticity and integrity of payment orders and, thus, bear the financial risks of undetected falsifications. In practice however, this legal situation is commonly, and permissibly, modi­fied by specific contractual clauses which transfer the financial risk of undetected falsifications to the client, excepting gross negligence by the bank. The author examines the legal situation in the context of payment orders transmitted by e-mail. He points to the fact that an e-mail message, by its very nature, does not allow for a proper verification of the authenticity and integrity of its content. He therefore concludes that a contractual risk transfer clause is only applicable in this context if the parties have adopted additional measures allowing for proper verification.

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