The execution of unauthorised payment transactions and the payment service user protection under the legal framework governing the payment services and the electronic money

Patrícia Guerra

Keywords

framework contract; payment instrument; payment service provider; payment service user; unauthorised payment transaction; liability.

Abstract

The aim of this essay is to analyse the payment service user protection under the legal framework governing the payment services and the electronic money in case of unauthorised use of a payment instrument.

It has been considered a very important issue in current times. National courts have been confronted with unauthorised payment transactions, mainly through digital means (especially homebanking).

The interpretation of that legal framework is a complex task and poses challenges. The absence of a profuse doctrine and jurisprudence about this matter increase the difficulties. 

By law, it should be considered, in our opinion, that when a payment instrument is used in an unauthorized manner, the losses suffered by the user should be, as a general rule, immediately and provisionally refunded. After analysing the circumstances during which the unauthorised transaction was executed, the payment service provider should keep (or not) the reimbursement, under the conditions set out in article 72 of the above mentioned legal framework, which takes into consideration the user’s degree of guilt. In our perspective, this liability legal framework is structured considering the subject that benefits more from the usage of electronic payment instruments.