SENTENCIA SC 16496-2016

STUDENT
Name Alejandra Rodriguez Peña
Date 01/06/2024
Course Disciplinary Optative-Electronic commerce/informatic law

1. CONTEXT
1.1. IDENTIFICATION
Number SC 16496-2016
Rapporteur magistrate Margarita Cabello Blanco
Chamber of decision Civil Cassation Chamber of the Supreme Court of Justice
Clarifies vote Luis Armando Tolosa Villabona
Releases vote N/A
1.2. LEGALLY RELEVANT FACTS
1. The demandant Belisario Caicedo Capurro celebrated a contract of current account with the
bank BBVA(previously known as Banco Ganadero S.A.) the 4th of may of 1987. By 1989 the
bank gave him a debit card that he never requested and that he also never used.
2. Around the month of august and september of 1994, when mister Caicedo was out of the
country, there were some cashier’s withdrawals with the mentioned card, withdrawals that
reach the amount of $1.700.000 COP. Because of this mister Caicedo properly informed the
bank about the elicit withdrawals. That situation repeated on other occasions and the bank
imputed operational costs to every transaction.
3. In December of 1994, the bank reported the centrals of risk about the mora of mister Caicedo,
ignoring the communications sent by the demandant.That report create a lot of damage for
mister Caicedo because other banks started to negate him credits and other stuff that predicate
his name, especially as an business man and as the owner of the 98% of the capital of Confetti
Ltda.
4. Based on the previous information Mr. Caicedo decides to interpone a lawsuit to declare the
non-fulfilment of the contract, and also the responsibility of the bank for the money lost and
the damages caused with the report made by the bank on the centrals of risk
1.3. FIRST INSTANCE JUDGMENT
The judge of first instance dictate a disesteem of the pretension of the lawsuit taking on count the
exception of the nonexistence of the obligation of compensate damages, because the demandant had a
responsibility over the acceptance of the debit card, and also arguing that the report they made was an
obligation of the bank over the mora.

1.4. SECOND INSTANCE JUDGMENT

The Tribunal confirmed the decision of first instance, with the following arguments:
1. The requirements to the background resolution are fulfilled and both parties were legitimized
in the case.
2. A complete analysis of the institution of civil responsibility.
3. A description of the contractual relationship, which established that the bank didn't have to
block the debit card because there wasn't any clause about it, and because of this it didn't have
any responsibility. Also the bank blocked the card on the 13th of September of 1994.
4. The tribunal also argues that the defendant has a duty of keeping and protecting the card, and
that he couldn't prove the fraud in the transactions, because for those the pin of the card was
used. And also justifies the bank for the report made to the central of risk, because it is their
duty.

1.5. CASSATION APPEAL

The cassation appeal is made by the demandant, based on the following arguments:
1. The decision made by the tribunal violates the articles 830, 1382 and 1385 of the Commerce
Code, and the articles 1602, 1603, 1604, 1608, 1613, 1614, 1615 and 2341 of the Civil Code.
2. The tribunal did not take into account some evidence of the demanding contributions, such as
the communications made by Mr Caicedo.
3. The tribunal didn’t take into account that the defendant didn't request the card and the
dispositions made in the contract.

1.6. COURT’S DECISION

The Court did not revoke the tribunal's judgment.

2. LEGAL ARGUMENTS

2.1. LEGAL PROBLEM

The responsibility of the bank over the unauthorized transactions made with the debit card, and the
damages made by this and because of the report in the central risk, things that damage mister
Ciacedo’s reputation and patrimony.

2.2. RATIO DECIDENDI (RD)

● The bank has the duty to prevent risks, to keep the money deposited, so the owners can later
make use of it.
● The contract of current accounts dispose of the conditions of the account and if the money
needs overdraft to be withdrawn.
● There wasn't a breach of contract, because the card was accepted tacitly.
● The overdrafts that the bank emits are a responsibility of the client, to keep and protect them.
● The demandant didn't keep and did not protect the debit card.
● The withdrawals were made with the card and the pin.
● Is a bank’s duty to put a term of expiration on the card, they had to put some measurement
when the card wasn't used.
3. NO VINCULANT ARGUMENTS

3.1. OBITER DICTA RESALTABLES (OD

● The court talks about the use of technology as an easy access of goods and services, and the
repercussions on the personal relationship with the bank.
● The contract of current account is an autonomous contract where the bank constitutes the
debtor as a client.
● The presumption of good faith.

3.2. VOTING CLARIFICATIONS

The magistrate Tolosa AGREES with the decision, but did not agree with some postures of the Court,
like:
1. The nature and description of the current bank account, because he considers that the
overdrafts can be present on these types of contracts, without a previous authorization, he
claims that they need an offer and an agreement.
2. He doesn't consider the current account is like a mutual contact, because not always both
parties end up with profit.

3.3. VOTE RELEASES

NO

4. COMMENT
I consider the Court to make an excellent analysis over the components of the contract of current
bank account, but I agree with doctor Tolosa, because for me the banks shouldnt give the debit card
without consent of the client, there must be a clear acceptance of all of the responsibility that this
type of overdrafts have.