A Bank's Duty of Care
D. Busch and C.C. Van Dam, A Bank’s Duty of Care – European and Comparative Law Perspectives, European Business Law Review 2019 [Forthcoming]
91 Pages Posted: 23 Feb 2018 Last revised: 10 Nov 2018
Date Written: February 12, 2018
In this article we place a bank’s duty of care in a European and comparative law perspective. The first thing that strikes is that courts throughout the jurisdictions approach the questions with respect to the bank’s duty of care in a pragmatic way. They do not seem to feel strongly bound or hindered by dogmatic or theoretical distinctions. For example, the courts do not generally distinguish between consumers and professionals but focus on the circumstances of the case and assess whether the client had sufficient knowledge to understand the financial product that was provided. The more knowledge and experience, the less protection he needs. And vice versa, the less knowledge and experience, the more protection he needs. From this balancing act, the courts find and shape the tools in their national legal system to achieve the outcome they deem to be fair, just and reasonable.
Keywords: Bank Duty of Care, Comparative, European Law
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