Australian Politics Forum - Bank Error In your Favour

NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #60 - Apr 23^rd, 2014 at 12:27pm

Schu wrote on 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.

Interesting.... And the plot thickens!

To add to the premises in the OP... The account owner is aware that one million has been deposited and the account owner does not claim ownership of the money.

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Schu

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Re: Bank Error In your Favour - Hold One Million
Reply #61 - Apr 23^rd, 2014 at 1:18pm

NorthOfNorth wrote on Apr 23^rd, 2014 at 12:27pm:

Schu wrote on 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.

Interesting.... And the plot thickens!

To add to the premises in the OP... The account owner is aware that one million has been deposited and the account owner does not claim ownership of the money.

This is fun; reminds me of Uni.

In the case of there being awareness, I think it would depend on how long that awareness had been the case without notification. There is a difference between claiming ownership and assumption of ownership, the former requiring a positive act, the latter not.

I think that if the money was there for a reasonable amount of time (say a few months) and the person was consistently aware of this then an argument could be made that they had assumed ownership. But I still think that's borderline if the bank never made any attempt to ask for it back and was refused. It would come down I think to whether the court believed that the timeframe indicated assumption of ownership and an intent to deprive. There would probably be a lot of questions about why the person didn't notify the bank to establish whether there was some purpose for leaving the money in the account.

But if the money was there for, say, a week I don't think there would be any case for theft. It could be argued that the person was waiting for the bank to contact them and/or reverse the error and that during that time they believed it was simply a glitch that would resolve itself.

None of these time limits are written anywhere, of course. I'm applying an interpretation to the legislation based on differing circumstances.

Another relevant component would be the use of the bank account. If the account was completely dormant and not touched then it would likely be harder to make a case for theft. However if the account was used on a daily basis then it would be easier because, even if the person didn't touch that particular amount of money in any way, it would still be impacting on interest. Plus the access and use would likely be seen as an assumption of ownership rights.

There is another component to this situation, which is the issue of ownership rights around money in accounts. If a bank erroneously places money in a person's account, can they just take it back or do they require permission from the account holder? I am not sure of this. If the bank can just take it back without permission then theft becomes an even less likely possibility because the money was technically never out of the bank's control.

In reality, I think what would happen is that the bank would ask for the money back or inform the person that they were taking it back and it would only be if the person refused that there would be a problem. I've never heard of a person being charged simply because money was in their bank account, only if they have used it.

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #62 - Apr 23^rd, 2014 at 2:53pm

Schu wrote on Apr 23^rd, 2014 at 1:18pm:

This is fun; reminds me of Uni.

In the case of there being awareness, I think it would depend on how long that awareness had been the case without notification. There is a difference between claiming ownership and assumption of ownership, the former requiring a positive act, the latter not.

I think that if the money was there for a reasonable amount of time (say a few months) and the person was consistently aware of this then an argument could be made that they had assumed ownership. But I still think that's borderline if the bank never made any attempt to ask for it back and was refused. It would come down I think to whether the court believed that the timeframe indicated assumption of ownership and an intent to deprive. There would probably be a lot of questions about why the person didn't notify the bank to establish whether there was some purpose for leaving the money in the account.

But if the money was there for, say, a week I don't think there would be any case for theft. It could be argued that the person was waiting for the bank to contact them and/or reverse the error and that during that time they believed it was simply a glitch that would resolve itself.

None of these time limits are written anywhere, of course. I'm applying an interpretation to the legislation based on differing circumstances.

Another relevant component would be the use of the bank account. If the account was completely dormant and not touched then it would likely be harder to make a case for theft. However if the account was used on a daily basis then it would be easier because, even if the person didn't touch that particular amount of money in any way, it would still be impacting on interest. Plus the access and use would likely be seen as an assumption of ownership rights.

There is another component to this situation, which is the issue of ownership rights around money in accounts. If a bank erroneously places money in a person's account, can they just take it back or do they require permission from the account holder? I am not sure of this. If the bank can just take it back without permission then theft becomes an even less likely possibility because the money was technically never out of the bank's control.

In reality, I think what would happen is that the bank would ask for the money back or inform the person that they were taking it back and it would only be if the person refused that there would be a problem. I've never heard of a person being charged simply because money was in their bank account, only if they have used it.

Thanks for that, Schu. I think you have nailed it. I had added earlier that 6 months had elapsed and the bank had neither reversed it nor had the account owner informed the bank.

However, you cover that in your reply.

I think you're right. I think in most cases, the bank would be happy to easily recover its money and interest without resistance and be done with it... But, I guess after 6 months of non-disclosure, you may possibly be rolling the dice a little too often.

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #63 - Apr 24^th, 2014 at 7:40am

OK one final ironic twist... (Why not... It could make a good movie plot!!)

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

   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.

FAST FORWARD 10 YEARS

You haven't spent the money, you haven't informed the bank... You've striven all those years to maintain the balance (including the now whopping interest in the account).
And you've spent 10 sleepless years angsting about the money... After all, its been 10 years and there's no way (you're sure) you're going to get out of this one when the bank discovers the error.

Finally the bank contacts you and asks you to a meeting with them.You agree.

[add lengthy capers trying to defer the meeting... Illness, death in family... in psychiatric hospital having suffered nervous breakdown... etc... etc...]

The day comes you meet wit the bank manager...

They're very sorry there's been a bank error... 11 years ago you helped an ancient (and rich) Mrs Huntington-Smyth cross the road safely. You gave her your name. With six months to live, she tracks you down and anonymously deposits ... 10 million into your account... The bank has deposited a mere one million in error and now, wishes to correct that error if you'd agree to going halves on the interest the other nine million has earned over the 10 year period and wants your non-disclosure of the error.

One of those 'Honesty is the best policy' stories.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #64 - Apr 24^th, 2014 at 9:23am

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?

You are wrong because the bank never lost anything at all. the money was still in their bank and they still have full access to it at any time. no interest was gained or lost and since the money was not spent the bank can take it back at any time.

to use another example, somebody leaves an expensive item on your front lawn during the night. You don't touch it or take it but you do not report it. It stays there for months. DId you steal it? no. no crime has been committed and the bozo who left it there is still free to take it back.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #65 - Apr 24^th, 2014 at 9:26am

NorthOfNorth wrote on 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.

I think it would still be hard to make a prosecution stick. At any point in time the bank can take their money back and rework your payments as if nothing has happened. It is my central argument that you cannot be charged with stealing something you didn't take and still have in your possession. And I am sure a half-decent lawyer would be able to defend that rather easily.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #66 - Apr 24^th, 2014 at 9:31am

NorthOfNorth wrote on 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.

It is an interesting side argument but it doesn't change the basic tenet that you did not take nor spend the money. this automatic payment was just that - automatic, not a choice. Without the money the account would have been overdrawn temporarily and nothing else. I don't see that it in any way changes the facts. Even taking out $500 in cash from an ATM (without a balance receipt) wouldn't change anything.

What perhaps some are forgetting that the bank has committed a breach of regulations (and perhaps law) by even putting the money there in the first place.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #67 - Apr 24^th, 2014 at 9:36am

NorthOfNorth wrote on 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.

I open my statements quarterly (BAS return) so receipt of a statement is meaningless. and if it is a business account with normally 200K-500K in it, would you notice $100K extra anyhow without a line-by-line check?

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Yadda

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Re: Bank Error In your Favour - Hold One Million
Reply #68 - Apr 24^th, 2014 at 9:43am

Prime Minister for Canyons wrote on Apr 22^nd, 2014 at 9:09pm:

NorthOfNorth wrote on Apr 22^nd, 2014 at 9:08pm:

Prime Minister for Canyons wrote on Apr 22^nd, 2014 at 9:05pm:

NorthOfNorth wrote on Apr 22^nd, 2014 at 9:02pm:

Prime Minister for Canyons wrote on Apr 22^nd, 2014 at 8:57pm:

http://www.banks.com.au/news/bank-errors-in-your-favour/

Its not a case, but if you dont return it the banks would try and get its return and you'd be forced to give it back crime or not. If you ignore it would be a crime.

You don't intend to dispute the error nor challenge/resist a reversal when it is finally discovered.

However, six months has now passed and the money and the interest is still unspent and therefore is still recoverable by the bank at any time.

I think the problem with your hypothetical is no bank would let it go that long

Well, its my hypothetical and I say the bank has not discovered the error for six months so far.

Well then I'm adding and saying magic pixies are responsible.

OR,

"My bank deposited one million dollars into MY account? ....It must have been an act of God!!!!"

Yes, it is still an unethical thought/reaction.

p.s.
Another 'hypothetical'....
What action would the bank take, if [after 6 months and one day] i donated the one million dollars [in my account] to the Salvation Army Street Kids Fund ?

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #69 - Apr 24^th, 2014 at 9:50am

longweekend58 wrote on Apr 24^th, 2014 at 9:23am:

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?

You are wrong because the bank never lost anything at all. the money was still in their bank and they still have full access to it at any time. no interest was gained or lost and since the money was not spent the bank can take it back at any time.

to use another example, somebody leaves an expensive item on your front lawn during the night. You don't touch it or take it but you do not report it. It stays there for months. DId you steal it? no. no crime has been committed and the bozo who left it there is still free to take it back.

You are assuming, of course, that the originating bank making the error was your bank and not a third-party bank.

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #70 - Apr 24^th, 2014 at 9:51am

longweekend58 wrote on Apr 24^th, 2014 at 9:31am:

It is an interesting side argument but it doesn't change the basic tenet that you did not take nor spend the money. this automatic payment was just that - automatic, not a choice. Without the money the account would have been overdrawn temporarily and nothing else. I don't see that it in any way changes the facts. Even taking out $500 in cash from an ATM (without a balance receipt) wouldn't change anything.

What perhaps some are forgetting that the bank has committed a breach of regulations (and perhaps law) by even putting the money there in the first place.

I'd refer to Schu's argument at http://www.ozpolitic.com/forum/YaBB.pl?num=1398162029/61#61

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #71 - Apr 24^th, 2014 at 9:53am

longweekend58 wrote on Apr 24^th, 2014 at 9:26am:

NorthOfNorth wrote on 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.

I think it would still be hard to make a prosecution stick. At any point in time the bank can take their money back and rework your payments as if nothing has happened. It is my central argument that you cannot be charged with stealing something you didn't take and still have in your possession. And I am sure a half-decent lawyer would be able to defend that rather easily.

And in the case of a third-party bank?

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NorthOfNorth

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Re: Bank Error In your Favour - Hold One Million
Reply #72 - Apr 24^th, 2014 at 9:56am

longweekend58 wrote on Apr 24^th, 2014 at 9:36am:

NorthOfNorth wrote on 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.

I open my statements quarterly (BAS return) so receipt of a statement is meaningless. and if it is a business account with normally 200K-500K in it, would you notice $100K extra anyhow without a line-by-line check?

It's not a business account... Its an everyday savings account.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #73 - Apr 24^th, 2014 at 9:59am

NorthOfNorth wrote on Apr 24^th, 2014 at 9:50am:

longweekend58 wrote on Apr 24^th, 2014 at 9:23am:

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?

You are wrong because the bank never lost anything at all. the money was still in their bank and they still have full access to it at any time. no interest was gained or lost and since the money was not spent the bank can take it back at any time.

to use another example, somebody leaves an expensive item on your front lawn during the night. You don't touch it or take it but you do not report it. It stays there for months. DId you steal it? no. no crime has been committed and the bozo who left it there is still free to take it back.

You are assuming, of course, that the originating bank making the error was your bank and not a third-party bank.

damn... you are right although in my experience it has been intra-bank errors that are the preponderance of problems.

A previous poster made the rather important claim that no one has ever been charged never mind convicted of theft in the situations(s) you define. I think that pretty much outlines what the law has to say in the matter.

My daughter had $300 deposited in her account from 'someone'. she told the bank about it and they did nothing. After about 6 months she basically claimed it as there was nothing else to do.

I am pretty sure the legal situation would only be an issue if the person refused or was unable to return the misplaced money. Even then it is not so clear cut. A british example was of a woman who put $2000 a month into her investment account not realising she had entered the account number wrong and after TEN YEARS realised it. The person who got the money refused to return it and she has been forced into CIVIL court to reclaim it. The notable fact is that no criminal charges have been laid. No doubt the court will order the return and if they refuse THEN maybe charged with theft. But this example simply shows that there needs to be definite intention to steal for any legal action to be taken which only makes sense.

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longweekend58

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Re: Bank Error In your Favour - Hold One Million
Reply #74 - Apr 24^th, 2014 at 10:00am

NorthOfNorth wrote on Apr 24^th, 2014 at 9:56am:

longweekend58 wrote on Apr 24^th, 2014 at 9:36am:

NorthOfNorth wrote on 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.

I open my statements quarterly (BAS return) so receipt of a statement is meaningless. and if it is a business account with normally 200K-500K in it, would you notice $100K extra anyhow without a line-by-line check?

It's not a business account... Its an everyday savings account.

I think Id notice $100K in my savings account given that it had $11 in it last night and I spent $10.61 at Coles on card!

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