Izvorni znanstveni članak
Seizure of Credit Claims on Bank Accounts
Petar Miladin
Hrvoje Markovinović
Sažetak
Discussion about the execution on bank accounts eventually ends by finding the executee’s claims against the bank which can be seized. Executors most frequently resort to the simplest solution, which is the seizure of the executee’s balance claim on the bank account. Besides the balance claim, the executee, the holder of the account, also has other giro account contractual claims. The executee’s claims regarding disposition credits on the current account and the so-called wrongful overdraft on the bank account are the most interesting ones to the executor. The executor may get hold of the executee’s claims on the current account either in such a way as to require by the restraining order their seizure and transfer for payment, or directly according to the Execution Act (EA). Discussion about the seizure of credits on the current account is essential in both cases.
Seizure of credit claims on current accounts and their transfer for payment are possible according to the general rules of the EA on the execution on the executee’s monetary claim. If the executor succeeds in his action for execution, he can count on the settlement of his execution claims by claims which the executee has against his bank on the credits on the current account if other prerequisites for this are fulfilled. If the executor fails to do this, he cannot expect that the execution court will substitute the imprecision of his action for execution in this respect by the provisions of the EA on claims on the bank account. Seizure of credit claims on the current account and their transfer for payment are not possible then. The executor may execute his rights to the executee’s credit claims on the current account only indirectly. The bank is, namely, responsible to the executor for damages if by breaking the blockade of the seized bank account pays through the bank account to anyone except the executor. The case when the bank even after the receipt of the decision on seizure of the executee’s claims on the bank account continues to credit the executee on the current account on the debit basis is also considered to be the breaking of the blockade of the bank account. Comparison of these two approaches to the seizure of the executee’s claims on the credits on the current account shows the advantages of the first approach.
The executee’s claims on credits on the current account are seized as the executee’s future claims against the bank. The executor’s settlement in any case depends on whether the executee will require from the bank to pay the credit after the bank as the executee’s debtor receives the decision on seizure. In case of the so-called wrongful overdrafts on the bank account, the bank must actually pay the credit.
Banks are obliged to protect themselves from the risks of the seizure of credit claims on the current account on bank accounts. The period which follows immediately after the receipt of the decision on seizure is particularly risky for the bank. In order to protect themselves, banks more often use technical than legal methods. While putting intern blockade on the seized bank accounts, banks have to take into account legal standards as well. Otherwise they cannot expect legal effects which they intended to achieve. Cancellation or revocation of credit claims on the current account requires clear legal intention of the bank based on precise clauses of general business conditions or individual giro contracts.
Ključne riječi
bank account; seizure and transfer; disposition credit; wrongful overdrafts
Hrčak ID:
5058
URI
Datum izdavanja:
20.10.2006.
Posjeta: 2.893 *