Australian Politics Forum - Bank Error In your Favour

NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #45 - Apr 22^nd, 2014 at 10:45pm

ian wrote on Apr 22^nd, 2014 at 10:41pm:

Schu wrote on Apr 22^nd, 2014 at 10:36pm:

ian wrote on Apr 22^nd, 2014 at 9:47pm:

NorthOfNorth wrote on Apr 22^nd, 2014 at 9:44pm:

ian wrote on Apr 22^nd, 2014 at 9:40pm:

This might help you out, note the highlighted text
Quote:

A person intends a consequence they foresee that it will happen if the given series of acts or omissions continue, and desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind (a "subjective" test). A person who plans and executes a crime is considered, rightly or wrongly, a more serious danger to the public than one who acts spontaneously (perhaps because they are less likely to get caught), whether out of the sudden opportunity to steal, or out of anger to injure another. But intention can also come from the common law viewpoint as well.

Black's Law Dictionary and People v. Moore state the definition of Criminal Intent as "The intent to commit a crime: malice, as evidenced by a criminal act; an intent to deprive or defraud the true owner of his property."

But is it a crime not to inform the bank of its error? If its not a crime, then the test of intent doesn't apply.

its a crime to keep money not belonging to you, its called theft. whether you do this by acts or

omissions

signifies intent.

Theft requires more than just keeping something that doesn't belong to you such as the issue of the owners' consent and an intent to deprive the owner, neither of which is the case here.

Keeping something that doesnt belong to you without the owners consent is theft, who told you it wasnt?

The owner inadvertently leaves it in my possession. I don't use it (or spend it). Do I have a legal duty (not a moral duty) to return it / inform the owner?

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Schu

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Re: Bank Error In your Favour - Hold One Million
Reply #46 - Apr 22^nd, 2014 at 10:46pm

ian wrote on Apr 22^nd, 2014 at 10:41pm:

Schu wrote on Apr 22^nd, 2014 at 10:36pm:

ian wrote on Apr 22^nd, 2014 at 9:47pm:

NorthOfNorth wrote on Apr 22^nd, 2014 at 9:44pm:

ian wrote on Apr 22^nd, 2014 at 9:40pm:

This might help you out, note the highlighted text
Quote:

A person intends a consequence they foresee that it will happen if the given series of acts or omissions continue, and desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind (a "subjective" test). A person who plans and executes a crime is considered, rightly or wrongly, a more serious danger to the public than one who acts spontaneously (perhaps because they are less likely to get caught), whether out of the sudden opportunity to steal, or out of anger to injure another. But intention can also come from the common law viewpoint as well.

Black's Law Dictionary and People v. Moore state the definition of Criminal Intent as "The intent to commit a crime: malice, as evidenced by a criminal act; an intent to deprive or defraud the true owner of his property."

But is it a crime not to inform the bank of its error? If its not a crime, then the test of intent doesn't apply.

its a crime to keep money not belonging to you, its called theft. whether you do this by acts or

omissions

signifies intent.

Theft requires more than just keeping something that doesn't belong to you such as the issue of the owners' consent and an intent to deprive the owner, neither of which is the case here.

Keeping something that doesnt belong to you without the owners consent is theft, who told you it wasnt?

The bank, as the owner of the money, gave implied consent to it being in the account when it was deposited into the account. This is akin to someone using my property to store some of their goods.

It would only be if the bank asked for the money back and I refused to give it back, or if I then used the money in some way, that I would have potentially committed a crime because then I am depriving ownership. In much the same way as if I refused to give back a person goods they had stored at my place when they asked for them or used those goods for my own purposes without permission.

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ian Gold Member Offline OzPolitic Posts: 9451	Re: Bank Error In your Favour - Hold One Million Reply #47 - Apr 22^nd, 2014 at 10:53pm its exactly the same as if you found it on your front lawn and told no one. Where you found the money and who put it there is irrelevant, by not notifying the owner and keeping it you are committing theft.
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Schu

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Re: Bank Error In your Favour - Hold One Million
Reply #48 - Apr 22^nd, 2014 at 11:28pm

ian wrote on Apr 22^nd, 2014 at 10:53pm:

its exactly the same as if you found it on your front lawn and told no one. Where you found the money and who put it there is irrelevant, by not notifying the owner and keeping it you are committing theft.

No, you aren't. The prosecution would have to demonstrate that at some point you assumed ownership rights and it merely being on your front lawn does not equate to assuming ownership rights.

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #49 - Apr 23^rd, 2014 at 6:33am

OK.

Now for a clearer case of unjust enrichment.

The bank deposits the one million dollars into your mortgage account, instantly wiping out your mortgage. Your automatic payments to your mortgage are stopped.

Its harder now to argue that you don't have a duty to act as it is evident that you have financially gained from the error.

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The Heartless Felon Gold Member Offline Australian Politics Posts: 2869 Gender:	Re: Bank Error In your Favour - Hold One Million Reply #50 - Apr 23^rd, 2014 at 7:12am I don't know if it's still on the books but there used to be a charge of "Stealing by Finding"...
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aquascoot Gold Member Online Australian Politics Posts: 34767 Gender:	Re: Bank Error In your Favour - Hold One Million Reply #51 - Apr 23^rd, 2014 at 7:18am crime north, there have been cases where people spent money that turned up and they were charged and convicted. Recent case where a malfunctioning ATM gave a guy several thousand dollars, here in Brisbane. Hunted down by the authorities and told to hand it over or would be charged.
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Sir Spot of Borg

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Re: Bank Error In your Favour - Hold One Million
Reply #52 - Apr 23^rd, 2014 at 7:28am

NorthOfNorth wrote on Apr 22^nd, 2014 at 8:20pm:

Through a bank error your account is deposited one million dollars.

What do you do?

   You don't spend it.

   You don't spend the interest it earns.

   You don't use it as collateral for a loan.

   And... You don't inform the bank of the error.

Have you committed a crime?

My bank made an error once and deposited 10k in my bank account. I rang them and told them about it and they acted as if i stole it. Froze my account for a week while they "investigated".

SOB

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #53 - Apr 23^rd, 2014 at 7:32am

aquascoot wrote on Apr 23^rd, 2014 at 7:18am:

crime north, there have been cases where people spent money that turned up and they were charged and convicted.
Recent case where a malfunctioning ATM gave a guy several thousand dollars, here in Brisbane.
Hunted down by the authorities and told to hand it over or would be charged.

Yes, that's true where you have spent the money (theft), or used used it as collateral for a loan (fraud) clearly you have committed a crime.

Also there's another problem with risking 'no duty to act' (if in fact you don't have a duty to act in the first instance) where a bank error in your favour (under the circumstances of the OP) has occurred.

That is, if, say, an unexpected payment (say rates) incidentally uses some of the one million dollar balance. While you may not be aware of it at the time and you know that your pay (or a legitimate payment will be made to your account to cover the rates payment within a day or two), you have in fact unlawfully used the money originally transferred to you in error. As you have not informed the bank of the error, you have little defense against any charge of theft subsequently brought against you. Insisting that you had effectively paid it back almost immediately will not be a defence that will exonerate you from the original charge.

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #54 - Apr 23^rd, 2014 at 7:35am

Sir Spot of Borg wrote on Apr 23^rd, 2014 at 7:28am:

NorthOfNorth wrote on Apr 22^nd, 2014 at 8:20pm:

Through a bank error your account is deposited one million dollars.

What do you do?

   You don't spend it.

   You don't spend the interest it earns.

   You don't use it as collateral for a loan.

   And... You don't inform the bank of the error.

Have you committed a crime?

My bank made an error once and deposited 10k in my bank account. I rang them and told them about it and they acted as if i stole it. Froze my account for a week while they "investigated".

SOB

And the error was acknowledged. I'm guessing, and reversed?

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Sir Spot of Borg

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Re: Bank Error In your Favour - Hold One Million
Reply #55 - Apr 23^rd, 2014 at 7:37am

NorthOfNorth wrote on Apr 23^rd, 2014 at 7:35am:

Sir Spot of Borg wrote on Apr 23^rd, 2014 at 7:28am:

NorthOfNorth wrote on Apr 22^nd, 2014 at 8:20pm:

Through a bank error your account is deposited one million dollars.

What do you do?

   You don't spend it.

   You don't spend the interest it earns.

   You don't use it as collateral for a loan.

   And... You don't inform the bank of the error.

Have you committed a crime?

My bank made an error once and deposited 10k in my bank account. I rang them and told them about it and they acted as if i stole it. Froze my account for a week while they "investigated".

SOB

And the error was acknowledged. I'm guessing, and reversed?

Oh yeah . . . . .

SOB

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #56 - Apr 23^rd, 2014 at 7:44am

One thing on your side in the case of 'bank error in your favour' is that banks are highly reluctant to publicise their errors for fear of causing a loss of faith in its banking system with its customers and are happy to just reverse the funds (and interest) and be done with it. If you don't resist, even better.

There are many stories where the banks themselves will not acknowledge errors in your favour even if you do report it. Still not wise to spend the money or use it as collateral as (if indeed it is an error) as you have still been unjustly enriched. However, if the bank insists there is no error and refuses to reverse the payment, you at least have some defence against a charge of theft or fraud if and when they finally accept an error has occurred... and you will, of course, have to pay it back.

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cods

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Re: Bank Error In your Favour - Hold One Million
Reply #57 - Apr 23^rd, 2014 at 8:14am

if you were ill in hospital and did not access your account.....how do they prove you knew of the error..

it did happen to someone I knew she used her bank book..when she got home she had $100.000 more than when she went in the bank..

however they discovered it more or less straight away and took it back...before she had a chance to spend any.......shame

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #58 - Apr 23^rd, 2014 at 8:21am

cods wrote on Apr 23^rd, 2014 at 8:14am:

if you were ill in hospital and did not access your account.....how do they prove you knew of the error..

it did happen to someone I knew she used her bank book..when she got home she had $100.000 more than when she went in the bank..

however they discovered it more or less straight away and took it back...before she had a chance to spend any.......shame

Proving you were aware of the error would be in the form of your accessing the account, particularly where you have requested a balance, or a statement has been sent to you, for example. It is easy to verify that you did not access your account and easy to prove you were in hospital.

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Schu

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Re: Bank Error In your Favour - Hold One Million
Reply #59 - Apr 23^rd, 2014 at 11:38am

NorthOfNorth wrote on Apr 23^rd, 2014 at 7:32am:

Also there's another problem with risking 'no duty to act' (if in fact you don't have a duty to act in the first instance) where a bank error in your favour (under the circumstances of the OP) has occurred.

That is, if, say, an unexpected payment (say rates) incidentally uses some of the one million dollar balance. While you may not be aware of it at the time and you know that your pay (or a legitimate payment will be made to your account to cover the rates payment within a day or two), you have in fact unlawfully used the money originally transferred to you in error. As you have not informed the bank of the error, you have little defense against any charge of theft subsequently brought against you. Insisting that you had effectively paid it back almost immediately will not be a defence that will exonerate you from the original charge.

I think that one's borderline.

There is still a question of whether there was any intent to deprive and any assumption of ownership rights.

The theft laws (at least in Victoria) have been updated to incorporate electronic theft, but these require the person getting a machine to do something they shouldn't, which I don't think would apply in this instance.

The issue of whether you knew what was happening is also relevant. Cods' example of a person being in hospital and not even being aware of what was happening in their bank account would make it extremely difficult for any charge of theft.

The duty to act relates to the issue of taking reasonable steps to return something to the owner. However, just because I find something does not oblige me to do that. It is only if I assume ownership rights that I must take reasonable steps to find the owner.

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