Reflections on Cheques, Payment Instruments, Phishing and Codification

The essay starts out by explaining the inevitable demise of the cheque because of the increasing use of electronic funds transfers. However, as the latter pose new problems, the essay considers the possible codification of electronic payments law, with special reference to the directives of the European Union. As far as South Africa is concerned, the introduction of a code of banking practice dealing specifically with electronic payments is considered. The existing sources of the law of credit transfers are discussed with reference to applicable legislation, with special reference to the Financial Intelligence Centre Act 38 of 2001 and the amendments brought about by the recent amendments to this Act regarding due diligence and the monitoring function of banks. Examples are given of the standard terms of the agreements of different banks governing electronic funds transfers which indicate the responsibilities of both banks and customers. The concept of phishing and its consequences are explained. In this context, the need for recognition of delictual liability of the beneficiary (collecting) bank is illustrated. The essay concludes with a brief discussion of aspects of enrichment