Show me the money

By Legal Eagle

The latest news from Banking Mistake Land involves faulty ATMs in Sydney. The ABC reports:

Consumer groups are calling on the Commonwealth Bank to explain what went wrong with its ATMs on Tuesday, with a glitch resulting in some customers withdrawing excessive amounts from the machines.

Police charged two men in Sydney on Wednesday with fraud for allegedly withdrawing extra money from the faulty machines during the meltdown.

One of the men, Ertem Poklar, 18, has pleaded guilty and will be sentenced next week.

He was allegedly seen accessing the ATMs at Merrylands at least 10 times and was arrested after being found with $50 in one hand and $1,500 in his shoulder bag.

He told police he was paid the $50 to withdraw the money.

By close of business on Tuesday the faulty ATMs were fixed.

The bank says it is still investigating how many customers were affected by the problems, which also disrupted online and phone fund transfers.

Yes, technically it is a crime to take extra money from ATMs. However, a BBC article on the Commwealth Bank’s woes notes that we feel differently about people who steal from ATMs as opposed to people who steal from real people:

Morally speaking you are doing something wrong, stealing, if you take [the money from the ATM], says Simon Rippon of the Oxford Uehiro Centre for Practical Ethics. But the interesting question is whether this kind of stealing is more excusable than stealing from an individual.

Someone who takes cash from a malfunctioning cash machine is judged more leniently than someone else who takes cash that is accidentally left behind by the person in front of them, and who fails to inform that person of their loss, he says.

“The 18th Century Scottish philosopher Adam Smith, who is best known for his ‘invisible hand’ economic theory, provided a moral theory in his book The Theory of Moral Sentiments that can very naturally explain the distinction between these cases. On Smith’s theory, moral judgements arise out of our sympathy with the feelings of others.”

It’s difficult to identify an individual to sympathise with in the case of the misfiring cash machine, says Rippon, so it is only natural for us to judge the person in that case much less harshly than we judge the person in the second example.

This feeling that a bank cannot be a victim of crime is sometimes felt very strongly. In 2003, a family in Coventry made repeated visits to an obliging cash machine and the four of them took out £134,410, which they spent on a new car and air tickets to Jamaica. Three of them were imprisoned.

It’s a crime to take the money, but there are two reasons why many people instinctively find this kind of theft less serious or even harmless, says Julian Baggini, editor of The Philosophers’ Magazine.

One is that the transaction is completely impersonal and does not require surreptitious behaviour. The other is that people view crime against large corporations as victimless, even though prices and insurance premiums are affected by theft and fraud.

“Leading a moral life requires us to be the kind of person who does the right thing without always stopping to work out if we gain or lose by doing so,” says Baggini.

“We do what is right and hope that others will do the same because we want to be that kind of person, not some kind of egotist who is forever trying to work out what acts will serve our own petty self-interest.”

People who keep money from rogue cashpoints are not modern day Robin Hoods, he says. Theirs is not a principled act but an opportunistic one.

“But any moral indignation should be proportionate. I think given that many people struggle with money, resisting temptation, even if it is the right thing to do, is hard enough for us to understand those who don’t.”

Of course, my interest in this area is primarily in the civil consequences of the glitch. It is suggested that the Commonwealth Bank will definitely have recourse to recover the money from individuals who have taken advantage of the glitch in its computer processes, subject to the defence of good faith change of position.

It’s my theory that one of the reasons behind the rise of unjust enrichment law is electronic banking and the mistakes which arise therein. Seriously! I’ve spoken before about the paradigm case, Chase Manhattan Bank N.A. v Israel British Bank (London) Ltd [1981] Ch 105. In that case, an amount of over US$2million was accidentally transferred to Israel British Bank twice, but before the mistake could be rectified, the IBB became insolvent. Doh! Controversially, Chase Manhattan was awarded a constructive trust (or arguably a resulting trust) over the wrongly transferred money, and thus it was a secured creditor in the insolvency. Lucky for the poor benighted bank employee who made the mistake! Of course, ordinarily there won’t be a proprietary remedy, but nor will there be a need for one: there will simply be a personal obligation to repay the mistakenly paid money.

There are also some Australian cases, including ANZ v Westpac (1988) 164 CLR 662, where an ANZ customer wanted to pay $14,000 to a Westpac customer. The ANZ’s computer system made a mistake and paid $114,000 to the customer. ANZ had legally paid its own money to the Westpac customer, so it sued Westpac for the money. The High Court said that, in principle, ANZ was entitled to recover the money because it had made a fundamental mistake. However, Westpac could rely on the defence of ministerial receipt, as it was an agent receiving money on behalf of a principal (the Westpac customer).

If one took money from an ATM and did not realise that it was paid by mistake, there is a defence of good faith change of position (David Securities). I suspect the gentleman with the shoulder bag filled with $1,500 cash is going to have difficulty in establishing this defence, and that he will simply have to pay the bank back. Should this be all the gentleman has to do, or should he be charged with theft? The moral discussion above suggests that we view people who take from ATMs differently to people who take from individuals, so perhaps he should be extended leniency, particularly if he returns the money. He has probably well and truly learned his lesson. Let it be a lesson to others out there — if an ATM is malfunctioning, don’t simply take the money and tell all your friends — tell a bank employee.

Update: Eoin O’Dell has a detailed post on a similar event in Ireland just before Christmas last year and the possible legal responses. Go have a read.


  1. Miss Candy
    Posted March 7, 2011 at 10:16 am | Permalink

    I think there’s another element in the judgement of ATM theft as victimless crime, and that is in the grossly large profits of the big four banks in Australia. The relationship between profits, fees shareholders and consumers propels us towards a view that it is not just unreprehensible to withdraw a small amount of excess money from an ATM as a result of their stuff-up, it’s actually rectifying a standing injustice. It’s equity in action, if you like.

    It’s the gargantuan hubris of the banks that the moral accountability for these actions turns on in Australia.

  2. ken n
    Posted March 7, 2011 at 11:45 am | Permalink

    As I understand it, the glitch was that the ATMs were offline – they did not check the customer’s balance before dispensing money. So a customer might end up being overdrawn.
    Most people, I would guess, have a rough idea of what’s in their accounts so if they took more they were wilfully taking advantage of the glitch. They can’t really complain about having to repay the money.

  3. desipis
    Posted March 7, 2011 at 12:08 pm | Permalink

    Should this be all the gentleman has to do, or should he be charged with theft?

    I think I’d support criminal charges for people exploit a malfunctioning ATM when we have criminal charges for company employees (or perhaps executives) who exploit irrational actions by consumers through savvy marketing or pushy salesmanship.

  4. kvd
    Posted March 7, 2011 at 2:17 pm | Permalink

    LE I don’t see this as a crime. If I understand the facts, the ATMs were off-line – i.e. no balance check was possible – but would have had to be accessed by a valid card and pin, and no doubt were recording the amounts withdrawn. If those are the facts, then the bank no doubt has some extra work to do in collecting the overdraws, but where is the illegality/crime?

    I don’t see it as inherently illegal to accept money issued against a valid bit of plastic if you have followed all the procedures imposed at the machine. If you then refuse to pay it back, there will be some cause open to the bank to retrieve its money, but I don’t see crimilality here; more just plain human stupidity, thinking the bank has somehow been “beaten” and will have no ordinary commercial comeback.

    So, I’m saying even if you knew you were overdrawing your funds, surely it is a civil (debt recovery) rather than criminal (theft) matter?

  5. kvd
    Posted March 7, 2011 at 2:33 pm | Permalink

    And also I’d like to note that whoever the ATM programmer was who decided, in the absence of a valid balance check, to hand out whatever was requested needs shooting or, at very least, the sack.

  6. kvd
    Posted March 7, 2011 at 3:02 pm | Permalink

    Yes, technically it is a crime to take extra money from ATMs

    Quite seriously, are we now reduced to this? Our potential criminality decided by the whim of some poorly programmed inanimate object which has been foisted upon us simply because the banks can’t be bothered to provide suitable checks and balances over OUR money?

  7. Andrew Reynolds
    Posted March 7, 2011 at 4:13 pm | Permalink

    You are right – it is not a crime to take money from an ATM if you either believe all you are doing is withdrawing it from your account or have a (contractually agreed) intention to pay it back later – termed an overdraft.
    If, OTOH, you know the machine is off-line and are deliberately withdrawing as much money as you can, knowing that you are deliberately taking the money in the belief you will not have to pay it back, then you are just as much stealing as if you took someone else’s ATM card and withdrawing the money from their account.
    That’s what it looks like Poklar was doing and, if so, he deserves his conviction.

  8. MikeM
    Posted March 7, 2011 at 4:18 pm | Permalink

    I’d like to note that whoever the ATM programmer was who decided, in the absence of a valid balance check, to hand out whatever was requested needs shooting

    This was almost certainly a bank management decision, not one of a computer programmer, and a very sensible decision, too.

    When an ATM loses contact with its central computer there are two options: disallow all further cash withdrawals; or allow and locally record cash withdrawals of a sum up to some modest limit.

    The first option may grievously inconvenience honest customers who have a need for cash, especially at a time when bank branches are shut.The second option may allow a tiny minority of customers to abuse the system, either in a modest way by withdrawing the off’line limit (perhaps $500), knowing that the balance of their account is less than that; or in an egregious way, by returning to ATMs again and again and withdrawing again and again the offline limit amount.

    I have nowhere seen CBA complimented for putting the interests of the bulk of its customers ahead of the inconvenience and work that it faces in retrieving withdrawals that should not have been made.

    Readers may recall an incident some months ago where NAB ATMs failed and were not allowing offline withdrawals. Customer outrage became so severe that NAB was forced to open many of its branches over a weekend so that cash-strapped customers had some opportunity to get some of their cash.

  9. kvd
    Posted March 7, 2011 at 4:35 pm | Permalink

    Andrew, is this what SL meant the other day about reversing the onus of proof? i.e. I have to prove my innocent intention to retrieve (what I thought was) my own money from some bank-provided badly-coded inanimate object? Miss Candy was right in suggesting that sympathy may lie elsewhere.

  10. kvd
    Posted March 7, 2011 at 4:49 pm | Permalink

    [email protected] agree with what you say, except the penalty imposed upon the dealing between one citizen (maybe me) and another (the Bank) is now somehow assumed to be criminal unless otherwise proven? As I understood LE’s throwaway line.

    And I’d be interested to know of any “bank management” which had even the slightest interest in the inner workings of an auto-teller machine probably provided by a third party (at a suitable fee) except when it fails.

    That aside, good on CBA for arranging to “give” to its customers such of their money as it held in trust – at whatever inconvenience to itself.

  11. Andrew Reynolds
    Posted March 7, 2011 at 5:30 pm | Permalink

    A couple of errors in your last comment. The bank does not hold the money “in trust” – legally you lend it to them and they have a contractual obligation to deliver equivalent sums back to you in fulfilment of that contract. It is not, and has never been, a trust arrangement. If you are in any doubt on this see the decision in Foley v. Hill and Others.
    That also shows why you were wrong in your response to me. If you intentionally overdraw your account then you have committed the offence of fraud. The bank normally does not mind this (they get to charge a fee) and if you pay them back they will be happy – in fact most of the time this is covered under your contract with the bank and, if it is, then this is not fraud.
    In cases where you have taken the money in the belief that the bank will not be left out of pocket then there is still the obligation on the part of the prosecuting authority to prove that this was your intention (no reverse onus of proof there) but provided they can do that (as they seem to have done in the case above) then you can (correctly) be convicted.

  12. kvd
    Posted March 7, 2011 at 6:42 pm | Permalink

    [email protected] I accept your disclaimer of any connection between “trust” and “bank”; but this is not what the common criminal (sorry, depositor) thinks when they hand over their money for safekeeping. But as you say

    they have a contractual obligation to deliver equivalent sums back to you in fulfilment of that contract

    so long as I keep accurate score at all times – otherwise my behaviour is potentially criminal? I just despise the thought that my accidental overdraw might in any way have to be subject to “criminal” investigation – like Satchel Boy.

    But it’s all ok because (some anonymous third party to the transaction called) “The Law” decides to cut me some slack?

    in fact most of the time this is covered under your contract with the bank and, if it is, then this is not fraud

    Why do I not now feel endless gratitude for the forebearance of The Bank?

  13. Andrew Reynolds
    Posted March 7, 2011 at 7:08 pm | Permalink

    No need to feel gratitude – and no need to keep an accurate score. The bank is normally more than happy to charge you a fee if you get it wrong. 🙂
    OTOH – if you deliberately take what you know to be too much out from your account in the belief that you will not be paying it back then you are guilty of fraud – provided the prosecuting authorities can prove, beyond reasonable doubt, that this was what you intended to do.
    As I said – it looks like they were able to that in the case above.
    On the “trust” vs. “bank” bit – if I deposit money with you on a trust basis then I would pay you to store it. If I go to a bank to deposit the money then they pay me interest for doing so – or at least don’t charge fees for storage of the money. Fees for services are a different matter, but the core difference is who pays who for “storing” the money.

  14. Patrick
    Posted March 7, 2011 at 7:38 pm | Permalink

    Dudes, relax. The criminality is obvious, isn’t it? Consider the case where you owe me $100, and trusting me (as well as having a very good idea of how much is in there), invite me to help myself to your stash, and I take $10,000.

    Have I committed theft? Did it even occur to you to consider your own moral turpitude?

    The pseudo-moralising about bank profits is utterly irrelevant and a very dangerous line of thought. The fact is that nothing short of civilization itself rests on millions of small enforceable contracts which no-one can actually afford to enforce because the costs of enforcement outweigh the costs of breach.

    Shoplifting is the classic example.

    Of course, failure to observe these petty contracts is commonly referred to as the collapse of society, and that leaves the pseudo-moralisers well off temporarily, a la Chavez, but the actual needy much worse off overall – a la Venezualeans.

    The rule of law is pretty much an absolute good. Distributive morality that is not predicated on the application of the rule of law (sometimes called communism, somtimes bolivarianism, othertimes shades of environmentalism) is the false god of fools.

  15. kvd
    Posted March 7, 2011 at 7:41 pm | Permalink

    [email protected] my simple point (carefully buried beneath gratuitous obfuscation) is that I basically object to what is normally a commercial (non criminal) matter being treated as a crime. Your OTOH sentence says it all – raising assumed motive, a supposedly disinterested third party – “prosecuting authorities” – and the concept of “beyond reasonable doubt”. Even LE mentions “defense”.

    All I wanted (to point out in an academic sense) was my $50. I am not ram-raiding an ATM; just pressing buttons, hoping to get some cash.

    Now, do you need my blood group and fingerprints?

  16. Posted March 7, 2011 at 7:47 pm | Permalink

    The day the ATMs dispensed the money was a day when CBA had problems with its systems. (I think MikeM @8 may be alluding to this.)

    The very quick conviction for this fellow is almost certainly because he made admissions, including, presumably, the one that he was doing it for somebody else in exchange for a payment of $50. That’s fairly inconsistent with a belief that the money you are withdrawing is “yours” in the sense that it is either a balance you are entitled to or that you know you will have to repay.

    Seems to me that he is unlucky to be an exemplary case, but if he’d kept his trap shut maybe he wouldn’t have been. Honesty aside, silence is often the best policy.

  17. kvd
    Posted March 7, 2011 at 7:49 pm | Permalink

    Clarification: LE mentioned “defence” – not “defense” -but a moth landed on my iPad before I was able to correct this egregious slander on my part. Apologies.

    That’s my story. Assume me innocent Unlike the banks.

  18. Posted March 7, 2011 at 7:58 pm | Permalink

    The same thing happened in Ireland before Christmas, and I discussed the restitutionary liability at length in my post Santa, Scrooge and overactive ATMs. For what it’s worth, I entirely agree with you that

    one of the reasons behind the rise of unjust enrichment law is electronic banking and the mistakes which arise therein.

  19. Posted March 7, 2011 at 8:13 pm | Permalink

    It’s interesting the number of people who think banks hold one’s deposits in trust. I know I thought this before studying some first level accountancy and financial management subjects, and was rather surprised at the discovery to the contrary.

    At least, however, when I came to study the subject ‘trusts’ I wasn’t shocked when the tutor (a nice young chap who was completing his pupillage at the time, IIRC) had to explain, actually, no, it’s a debt, and all you have is a chose in action.

  20. Posted March 7, 2011 at 9:10 pm | Permalink

    This entire exchange on banks, deposits and the law is just another example of the virtues of the common law. The latest Quadrant has a nice review of a study of the civilising power of English law. I particularly loved the bit about Indian merchants very much liking the use of English law.

    China was stuck with law-as-bureaucratic-order, Islam was stuck with divine law, India was stuck with alternative divine laws (Sharia or brahminic law). The only major civilisations with genuine competition in rules were Europe and Japan. Both developed capital markets much more sophisticated than the other civilisations with much better protected and specified commercial property rights. This had consequences.

  21. kvd
    Posted March 8, 2011 at 6:29 am | Permalink

    I think its mainly the power imbalance which annoys me about this sort of situation. The bank provides the circumstance and the tools to basically enable the committing of an act, which is then defined as a crime.

    I do understand the legalities involved, and my bad for slipping in the word ‘trust’ inappropriately – but as SL says, this is a very common view held as to the relationship between people, and their money, and their bank.

    Anyways, I wish the authors of this blog a happy International Women’s Day; may it become so unremarkable as to remove the need to acknowledge it.

  22. desipis
    Posted March 8, 2011 at 6:47 am | Permalink

    Dudes, relax. The criminality is obvious, isn’t it? Consider the case where you owe me $100, and trusting me (as well as having a very good idea of how much is in there), invite me to help myself to your stash, and I take $10,000.

    Except by the ATM releasing the cash, the bank has implicitly granted permission to take that $10,000 (or whatever the actual amount was). So I don’t think it’s theft.

    As for fraud, is the principle that you’re not suppose to try to profit at the expense of others due to their honest mistakes? Because if it is, I see the banks (and other companies) doing a lot of that.

  23. Posted March 8, 2011 at 7:00 am | Permalink

    Thanks KVD. 😉 Now where did I put the stilettos with the training wheels…

    A couple of errors in your last comment. The bank does not hold the money “in trust” – legally you lend it to them and they have a contractual obligation to deliver equivalent sums back to you in fulfilment of that contract.

    Perhaps in Australia, Andrew. Over here once your money is in the bank it’s THEIRS and you only have deposit protection up to £85,000 (it used to be 100% of the first £2000 and then 80% of the rest up to only £35,000 max but then a lot of British investors lost their shirts in Icelandic banks during the GFC). And at the moment with nothing but 0% yields on high street accounts it is WE who currently pay THEM to store OUR money.

    Any wonder banks aren’t the most popular just now?

  24. MikeM
    Posted March 8, 2011 at 7:41 am | Permalink

    kvd @10

    And I’d be interested to know of any “bank management” which had even the slightest interest in the inner workings of an auto-teller machine probably provided by a third party (at a suitable fee) except when it fails.

    Commonwealth Bank operates its own ATMs. They are programmable devices and function as bank payment systems management specify them to.

    Incidentally, CBA chief executive Ralph Norris began his banking career as a computer programmer at Auckland Savings Bank and rose to become CIO before becoming chief executive there. If you gave him a manual he could probably still find his way around the insides of an ATM – although that is certainly no longer his job.

  25. kvd
    Posted March 8, 2011 at 8:02 am | Permalink

    Thank you MikeM for the information. Appreciated.

    Since you seem more than familiar with these sorts of banking processes, would you care to enlighten me as to the following situation which happens to me with exasparating regularity? Because of my remote location I pay all staff via EFT on Wednesday, hoping their pay will ‘hit’ their account sometime Thursday – preferably mornings. Last Wednesday, I also transferred some funds to my ever-broke son, who checked his balance via phone immediately I hit send, and the funds were available to him.

    On the Thursday at 4 p.m I received an irate phone call from an employee who was unable to pay her rent because my transfer had not hit her account. This woman banks at the same branch as my business, as does my son.

    Two questions: why the delay in transfer to the employee as opposed to my son (whose account is in no way linked to my business account)? Secondly – where the hell do any of my EFT transactions sit after they leave my account, until they are credited to the recipient? I am aware of inter bank settlements, but for goodness’ sake, none of this activity takes place with any huiman intervention – and particularly not, in the case of my son and the irate employee.

  26. kvd
    Posted March 8, 2011 at 8:35 am | Permalink

    LE – you won your bet. In fact that is the only consistent thing in this whole weekly process, as far as I can see. The timing of employee receipt appears to be a bit like Lotto.

  27. Patrick
    Posted March 8, 2011 at 10:27 am | Permalink

    No, DEM, the position is exactly the same. As with any debt, however, there is credit risk.

  28. Posted March 8, 2011 at 11:42 am | Permalink

    [email protected]

    Presumably, the enthusiasm of Indian merchants for English law to which you refer is the enthusiasm of plaintiffs choosing to bring their cases in the “English” courts. Defendants may not have shared their enthusiasm.

    Windschuttle’s piece (I read it at the newsagents – it’s ostensibly a review of McPherson, The Reception of English Law Abroad) ends with the startling claim that English law delivered justice. That’s a larger claim than law customarily makes for itself and rather begs the question as to why those pesky colonies sought independence. The article also makes some fairly simple-minded statements about civil law traditions. One counter-example to the justice-enhancing qualities of English law which comes to mind is the use of defamation law in Singapore.

  29. MikeM
    Posted March 9, 2011 at 8:57 am | Permalink

    kvd @28

    I can’t explain the specific incident but I can make a general observation about funds transfers.

    Banks are midway in a transition between the old way of business, where it took 3-5 days for transferred funds to clear (e.g. by cheque), and the new way, where transfer is essentially instantaneous.

    Most banks’ account posting systems are run in daily batch mode, with the day’s credits to an account posted followed by the day’s debits. So, typically in the early hours of the following morning, account balances reflect what happened during the previous day.

    Cheques have always presented a complication in that the only way a bank posting a cheque can know that it is any good is to wait for several days to see if the bank on which it is drawn sends a dishonour notice. If it hears nothing, it can assume that the cheque is good. That is why a cheque is such an awkward way of transferring funds.

    With the introduction of ATMs, EFT/POS and other electronic transfer systems starting in the late 1970s, banks cobbled together add-on bits around their existing daily batch processing systems to give the illusion that instant transfer is occurring. However they can be imperfect in a variety of ways.

    If a business pays its staff by EFT, this involves the bank talking a file of transactions and at some point during the day, feeding that file into its EFT processing system. There is no specific time of day when that occurs. It is even possible for a file to be overlooked until someone complains. Payroll transfers for a business and a personal transfer for a manager of that business will likely as not occur at different times.

    The major Australian banks are currently replacing their core banking systems, parts of which probably date back to the 1960s. CBA in particular has announced an objective of getting the bulk of its systems to operate in real time, rather than in the batch mode that has been standard for the last 40+ years.

    High time you may think, but bank executives do not embark on half billion dollar systems projects lightly.

  30. kvd
    Posted March 9, 2011 at 10:54 am | Permalink

    Thanks MikeM – I do appreciate the follow up. Particularly the thought that it will get better sometime soon.

  31. Miss Candy
    Posted March 9, 2011 at 7:41 pm | Permalink

    My bank rant above wasn’t about the law – it was merely to point out the popular morality of the situation.

    If you want the law in Victoria, here it is: you must dishonestly appropriate the property with the intention to permanently deprive the other person.

    Thus, if you find money lying around on a park bench, it may not be dishonest to walk away with some, depending on the circumstances (eg if you’d made honest efforts to find the owner). I’m not sure what the jurisprudence is on this particular scenario – the provision is very similar in the UK I think.

    So the issue for the criminal law is the dishonesty or otherwise of the appropriation, in order to constitute theft.

    The other offences it could be are obtaining financial advantage by deception or obtaining property by deception. Again, it’s hard to see how a mistake is a deception,.

    Then again, failing to return something that you have – perhaps accidentally – appropriated may well be theft. If you accidentally walked out of a store with one of their t-shirts on and then realised it in the street, at that point you are dishonestly appropriating the property. Perhaps this might end up being a useful analogy if someone has withdrawn extra funds and then changed banks?

  32. Posted March 10, 2011 at 3:45 am | Permalink

    [email protected]

    Presumably, the enthusiasm of Indian merchants for English law to which you refer is the enthusiasm of plaintiffs choosing to bring their cases in the “English” courts. Defendants may not have shared their enthusiasm.

    Doesn’t follow: it would be possible for defendants to insist on using common law courts or for the process to be one of mutual agreement. The history of competitive mediation is a rich and complex one.

    As for your comments on Windschuttle’s review, you do not seem to have understood the point he was making, ignoring his somewhat over-egged conclusion.

    Certainly, what sort of legal system one prefers is completely independent of whether one wants to be independent. The US famously insisted on independence, but kept the common law. India and many other jurisdictions have done the same.

    Nor is any legal system perfect, the issue which is better on balance. Compared to the typical alternatives, the common law came out way ahead.

  33. Posted March 10, 2011 at 7:17 am | Permalink

    I can’t read the Quadrant article thanks to the subscription/geoblocker, so I’ll just make this observation: living and working in a mixed jurisdiction means I see quite a bit of civil law/common law oneupmanship. It gets tedious after a while and I’ve taken to defusing it by making the following points:

    1. There are only two really good legal systems on the planet, Roman law or Common law. In lots of other tricky choice situations, there are half-a-dozen different options. Be thankful lawyers only get to argue over two.

    2. Both have different strengths and weaknesses.

    3. Both have more in common than partisans on either side realise.

    4. The aspect of the civilian system that most common lawyers hate — the inquisitorial method — comes from European Canon law. Show modern French court procedure to Ulpian or Gaius and they’d have a cow.

    5. Historical Roman law codes (starting with Hadrian and finishing with Justinian) were much more like US Restatements than modern European civil codes, which are very much a Napoleonic creation. It is this aspect that has stymied the development of the rule of law in much of South America, because the Code becomes a political document, and changing it is like trying to turn the Queen Mary on a sixpence. Not gonna happen. There are foreshadowings of this type of thinking in Justinian — he tried to make it impossible to change the CIC, declaring his efforts to be ‘the final word’ on the law. Just as well civilians didn’t take that to heart, otherwise Roman law would have turned into Shariah.

    6. Roman law is kinder to women and witnesses, common law is kinder to the poor and the accused. In all probability, this reflects broad cultural and religious differences that go back to the 12 Tables and Henry I’s assizes. Remember, too, that the gender enlightened aspects of Roman law only re-emerged in Europe once Canon law was booted out of private law, a process started by Napoleon and not completed until the Germans re-enacted Ulpian’s sexual assault provisions in the 1980s.

    7. Both systems do the same job differently, and equally well (or badly). India is a terrible advertisement for the common law: corrupt, bureaucratic, maladministered. Latin America (with the exception of Chile) is a terrible advertisement for Roman law: corrupt, bureaucratic, maladministered.

    Law–done well–is a great and wonderful thing, but good laws don’t necessarily make good Law, which requires lots of other things.

  34. Posted March 10, 2011 at 2:09 pm | Permalink

    [email protected] Quite so, lovely summary. Most places that common law was spread to, the alternative was not civil/Roman law. They were Sharia, brahminic law, local customs with dubious commercial application, etc.

  35. Andrew Reynolds
    Posted March 10, 2011 at 11:07 pm | Permalink

    Most of the points I would have made have now been made and questions answered, so yours is (I think) the only one left out there.
    The legal case I citied above (Foley) is a statement of the law in both Australia and the UK. You are right. The money, once lent to the bank, becomes their property to deal with as they choose. This is because the lending of a fully fungible asset (cash, shares, bonds etc.) is different in nature from the lending of a non-fungible asset (say a car or some furniture).
    When a non-fungible asset is lent you expect to get that exact asset back. When a fungible asset is lent you do not care about the serial number on the asset – just the value.
    IIRC both, though, merely represent a chose in action – a right to sue if the terms of the contract (in this case the lending / borrowing transaction) are broken.

  36. George
    Posted March 15, 2011 at 11:14 pm | Permalink

    O.K!! I have seen how CBA can find justice and jail people who take advantage from a glitch of their computer system.
    I went to a Commbank ATM Saturday 5 Mar 2011 and used an overseas visa card to withdraw 1200 AU dollars
    The ATM gave me 16 50 dollar notes, 6 20 dollar notes and 2 10 dollar notes.

    In total 24 pieces witch would be alright if they where all 50’s. I got 260 dollar less and the machine has registered the transaction as 1200. Anyone any ideas how to claim my money?

  37. Posted March 16, 2011 at 9:40 am | Permalink

    Well, it’s not actually a matter of claiming your money, G. It’s a matter of having your visa balance adjusted to reflect the transaction which you say actually occurred.

    I’d say you should take it up with your visa card issuer. For caution and you should also make a complaint about the short tender with the CBA. Presumably you have.

    More generally, I think Alex Steel’s piece in the SMH (getting a bit old now) really hits the mark better than most of us did on this thread. Can’t help suggesting that this is an example of how the professional process (old style newspaper, academic writing on specialty) can produce a better product than the blogosphere, where even those of us with some professional expertise have been taking an essentially amateur approach.

    So George, I guess that means: if you want legal advice, see a lawyer, don’t ask us.

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