If you open a Swiss bank account you will have to agree to the terms and conditions of the bank. Swiss banks have tons of common clauses that they use in their terms and conditions. One of them is the approval fiction clause. According to this clause the account holder is considered to have approved the monthly bank statement if he does not contest it within thirty days.
This clause cost a client of a Swiss bank around 1.3 million euros (ruling 4A_161/2020 of the 6th of July 2020).
To the background
The victim opened a Swiss bank account and agreed to the terms and conditions. Thei contained an approval fiction clause. In the following he placed and held assets at this Swiss bank that he held through a Panamanian company. Two Swiss lawyers were in charge and responsible for this company. One of them had received all relevant bank correspondence including debit notes and account statements.
The fraudster was in charge of managing the assets of the victim. He forged the signature of the victim and accomplished to make payment orders on behalf of the Panamanian domiciliary company. He enriched himself unlawfully in the height of around EUR 1.3 million.
The findings of the federal court
The bank acted with gross negligence in connection with the verification and execution of the falsified payment orders. Yet, if the bank client made a severe mistake, the the bank might not liable anymore. In this regard, the Federal Supreme Court stated that this is especially then the case, if the customer, or his deputy, doesn’t review a debit note and account statement.
In this case the Swiss lawyer, and man in charge for the bank statements, was passive with regard to the statements he received. Since he had not protested against the fraudulent payment orders, the approval fiction clause stipulates that the client has accepted these dispositions.
Conclusion for a client of a Swiss bank
When clients open a Swiss bank account, they have to agree to the terms and conditions. Due to the widespread and long-standing use of the approval fiction clause, every client of a Swiss bank must be aware, that he must check the debit notes and account statements sent to him. This also applies if the bank sent them only by e-mail or e-banking. If he finds discrepancies, he must inform the bank instantly.
To be clear, the legal system in Switzerland operates with the fiction that the client was effectively informed of fraudulent dispositions, as long as he received the bank statements. Whether the client indeed saw the bank statement (or even discovered the fraudulent dispositions) or not, is not relevant. If the client does not contact the bank despite his “knowing” (the knowledge is implied) about such discrepancies, he can not fight those dispositions anymore.