Ellinger's Modern Banking Law,9780199281190

Ellinger's Modern Banking Law

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Edition: 4th
ISBN13: 9780199281190
ISBN10: 019928119X
Format: Paperback
Pub. Date: 2005-11-10
Publisher(s): Oxford University Press
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Summary

This fourth edition has been fully updated and revised to take into account the recent developments in electronic banking and payment, consumer credit, securities, and financial regulation. Also included are new chapters on money laundering and bank guarantees, ensuring this text maps closely on to university law courses.

Author Biography


E. P. Ellinger is Professor of Law at the National University of Singapore.
Eva Lomnicka is Professor of Law at King's College, London and a practising barrister.
Richard Hooley is Professor of Law at King's College, London. He is also a Fellow of Fitzwilliam College, Cambridge.

Table of Contents

Preface to the Fourth Edition xxi
List of Abbreviations
xxv
Table of Cases
xxvii
Table of Statutes
lxiii
Table of Statutory Instruments
lxxix
Table of International Instruments
lxxxiii
PART I BANKS AND BANKING BUSINESS
The Structure of the British Banking World
3(23)
The problem in context
3(2)
The clearing banks
5(11)
The London scene
5(8)
The clearing banks of Scotland and Northern Ireland
13(1)
The Cruickshank Report
13(3)
The merchant banks
16(2)
Discount houses and the wholesale money markets
18(1)
Foreign banks
19(1)
Overview
19(1)
The Association of Foreign Banks
19(1)
The American and Japanese banks
20(1)
The British Bankers' Association
20(1)
Comparison with building societies
21(3)
Other financial institutions
24(1)
Review of the system
25(1)
The Control of Banking Activities in the United Kingdom
26(42)
The need for controls
26(3)
The Bank of England
29(3)
The Banking Acts 1979 and 1987
32(3)
The Financial Services and Markets Act 2000
35(18)
Background
35(1)
The need for authorization
36(3)
'Accepting deposits'
39(1)
Exempt persons
40(1)
Authorized persons
41(2)
Authorized persons: powers of the FSA
43(2)
Financial promotion
45(4)
Deposit guarantee scheme
49(1)
The Financial Ombudsman Service
50(3)
The EU dimension
53(8)
Introduction
53(3)
The 'European passport'
56(1)
The Banking Consolidation Directive
57(2)
Capital adequacy
59(1)
The Deposit Guarantee Directive
59(1)
Other EU initiatives
60(1)
The Basle Committee on Banking Supervision
61(1)
The Banking Codes
62(4)
Background
62(1)
Legal status
63(1)
Content
64(2)
'CAT' and other standards for retail financial products
66(2)
Legal Definition and Privileges of Banks
68(26)
Banks at common law
68(6)
Problem of defining a bank
68(1)
Banking business at common law
68(5)
Defences conferred on banks under the Bills of Exchange Act 1882
73(1)
Defences conferred on banks by statutes utilizing other definitions
74(3)
The right to receive deposits from protected customers
74(2)
The right to invest in protected or supervised transactions
76(1)
The Bankers' Books Evidence Act 1879
76(1)
The meaning of 'bank' where the term is undefined
77(1)
The right to use the term 'bank' in a name
78(1)
The Consumer Credit Act 1974
79(13)
Background
79(1)
Agreements covered
80(1)
Provisions to be complied with: licensing
81(1)
Cancellation rights and contractual disclosure
82(4)
Default and termination
86(1)
Control of advertisements
87(1)
Canvassing
88(1)
Quotations
88(1)
Credit brokerage
89(1)
Other 'Ancillary Credit Businesses'
89(1)
Credit reference agencies
90(1)
Connected transactions
90(1)
Powers of the court
91(1)
Summary
92(1)
Assessment of statutory treatment of 'banking'
92(2)
Money Laundering and the Financing of Terrorism
94(23)
Introduction
94(1)
An international response
95(3)
The control of money laundering and terrorist financing in the UK
98(16)
General
98(1)
The Proceeds of Crime Act 2002
99(1)
The money laundering offences
100(3)
The ``failure to report'' offences
103(4)
Tipping off
107(1)
The Terrorism Act 2000 and related provisions
108(3)
The Money Laundering Regulations 2003
111(2)
The FSA Handbook
113(1)
Some problems posed to banks by money laundering control
114(3)
The Bank and its Customers
117(84)
The legal nature of the problem
117(1)
Who is a customer?
118(3)
The nature of the relationship between banker and customer
121(6)
The bank's duty of care and position as fiduciary
127(38)
The banker--customer relationship as a fiduciary relationship
130(5)
Undue influence
135(17)
Duty of care in contract and tort
152(11)
Remedies
163(2)
The confidential nature of the contract
165(30)
General scope
165(5)
Duration and scope of the duty of secrecy
170(3)
Compulsion at law
173(8)
Duty to the public
181(2)
The bank's own interest
183(3)
Information disclosed with customer's authority
186(2)
Secrecy and the intervention of foreign courts
188(7)
Termination of the relationship
195(6)
PART II THE BANK AS A MONETARY AGENCY IN DOMESTIC TRANSACTIONS
The Bank's Role as a Depository
201(11)
Economic function and legal concept
201(3)
Practical implications of the economic and legal concept
204(1)
The bank as a depository of its customer's funds and as paymaster of his accounts
205(3)
The bank as its customer's agent for collection
208(2)
Conclusion
210(2)
The Current Account
212(78)
Special nature of the current account
212(3)
The statement of account
215(14)
The nature of the problem
215(1)
The bank's right to rectify errors
215(2)
The customer's right to demand corrections
217(8)
Bank statements and pass-book entries as accounts stated
225(1)
Customer's silence with knowledge of wrong entry
226(3)
Combination of accounts
229(20)
Problem in practice
229(1)
Legal meaning of 'combination of accounts'
230(4)
When may accounts be combined?
234(8)
Is notice required?
242(2)
Special problems in insolvency situations
244(3)
Combination of accounts in customer's interest
247(2)
Third-party claims
249(41)
Definition of the problem
249(1)
Nature and elements of constructive trust actions
250(3)
Dishonest assistance
253(1)
There must have been a trust or other fiduciary relationship
254(1)
There must have been a misfeasance or breach of trust
255(2)
The person upon whom liability is to be imposed must as a matter of fact have been an accessory or assisted in the misfeasance or breach of trust
257(1)
The accessory must have been dishonest
258(7)
Knowing receipt
265(1)
Beneficial receipt
266(3)
Level of knowledge required
269(4)
Tracing money
273(1)
Tracing at common law
274(5)
Tracing in equity
279(3)
A fiduciary relationship
282(3)
Overdrawn accounts
285(3)
Banks as agents
288(2)
Special Types of Account
290(39)
Type of problem
290(1)
Joint accounts
291(7)
Nature of the account
291(1)
Right to draw
291(2)
Survivorship
293(5)
Partnership accounts
298(3)
Opening and operating a partnership account
298(1)
Borrowing through a partnership's account
299(1)
Dissolution of a partnership by death
299(1)
Problems of insolvency
300(1)
Executors' accounts
301(2)
Trust accounts
303(4)
General principles
303(1)
Borrowings by trustees
303(1)
Duty of the bank
304(3)
Solicitors' accounts
307(2)
Operation of the account
307(1)
Garnishee orders and related problems: who owns the balance?
308(1)
Estate agents' accounts
309(1)
Investment businesses' accounts
309(1)
Local authorities
310(3)
General principles
310(1)
Operation of accounts and power to borrow
311(1)
Liability of the bank
311(2)
Companies' accounts
313(5)
General principles
313(1)
Lending to a company
314(1)
Dealings in negotiable instruments and current account operations
314(4)
Unincorporated associations' accounts
318(2)
Married women's accounts
320(1)
Operation of account
320(1)
Borrowing by married women
320(1)
Wife's guarantee of husband's debt
321(1)
Minors' accounts
321(5)
General principles relevant in the context of banking
321(1)
Specific problems faced by the bank: current-account questions and lending
322(4)
Mentally incapacitated persons' accounts
326(3)
General principles
326(1)
Considerations relevant to banking operations
326(3)
Interest-bearing Accounts
329(23)
Classification and comparison with current accounts
329(2)
Legal nature of the arrangement
331(3)
Creditor--debtor relationship
331(1)
Payment to the wrong person
332(1)
Terms of contract
333(1)
Joint deposits
334(1)
Dispositions over balance
334(5)
Problems concerned
334(1)
Assignment of balance or of part thereof
335(1)
Set-off by bank
336(1)
Third party debt proceedings
337(1)
Limitation of action
337(2)
Deposit receipts and pass-books
339(7)
Problems involved
339(1)
Legal nature of deposit receipt and pass-book
340(2)
Loss of deposit receipt or pass-book
342(1)
The deposit receipt and the pass-book as the subject of a donatio mortis causa
342(1)
Negotiable certificates of deposit (NCDs)
343(3)
Foreign-currency deposits
346(4)
Assessment
350(2)
The Bank as Paymaster: Negotiable Instruments (including cheques)
352(60)
Negotiable Instruments and the development of non-transferable payment orders
352(3)
The clearing of cheques and non-transferable payment orders
355(9)
The cheque as negotiable instrument
364(11)
Introductory
364(1)
Definition and attributes of a cheque
364(4)
The transferability of a cheque
368(4)
Post-dated cheques
372(1)
Marking of cheques
373(2)
Crossed cheques
375(6)
Background and types of crossings
375(2)
Execution of crossing and its effect
377(1)
Crossing accompanied by the words 'not negotiable'
378(1)
Cheques crossed with the words 'account payee only' added
378(2)
Crossing of instruments similar to cheques
380(1)
The holder's duties in respect of cheques
381(3)
The meaning of duty and to whom it is owed
381(1)
Presentment for payment of a cheque
382(1)
Notice of dishonour
383(1)
Noting and protest
383(1)
Implications of the Consumer Credit Act 1974
384(1)
Travellers' cheques
384(1)
Bills of exchange other than cheques
385(19)
Nature and use
385(2)
The parties to a bill
387(4)
Position of the holder
391(6)
Negotiation of a bill
397(3)
Discharge of a bill
400(3)
Procedure on dishonour
403(1)
Promissory notes
404(2)
Special problems of bills drawn under lines of credit and acceptance credits
406(4)
The problems defined
406(1)
Are bills drawn under acceptance credits or lines of credit accommodation bills?
406(2)
Bankruptcy problems
408(2)
Negotiable instruments and the Consumer Credit Act 1974
410(2)
The Paying Bank
412(54)
The bank's duty to pay cheques
412(26)
Form of cheques and scope of duty to pay
412(2)
Availability of funds
414(4)
Third party debt proceedings
418(7)
Freezing injunctions
425(4)
Customer's death or insanity
429(2)
Bankruptcy and winding-up
431(3)
Countermand of payment
434(4)
The bank's liability for wrongful payment: nature of the problem
438(4)
The paying bank's defences for wrongful payment at common law and in equity
442(11)
Outline
442(1)
Customer's carelessness and cases giving rise to estoppel
443(6)
Ratification
449(2)
Customer's ambiguous instructions
451(1)
The equitable doctrine
451(2)
The paying bank's defences for wrongful payment: statutory protections
453(8)
Outlay
453(1)
Payment in due course
453(1)
Payment in the ordinary course of business
454(2)
Complementary defence of payment without negligence
456(2)
Irregularity in or absence of indorsement
458(3)
The customer's remedies for wrongful dishonour of his cheques
461(5)
Scope of problem
461(3)
Action in breach of contract
464(1)
Action in defamation
464(2)
Recovery of Money Paid by Mistake
466(46)
The problem in practice and the basic principle
466(5)
Recovery where the mistake is known to the payee
471(2)
Recovery in cases of payments not involving negotiable instruments
473(21)
Payor's liability and payee's entitlement
473(4)
Nature of operative mistake
477(3)
Defences
480(1)
Change of position
480(8)
Good consideration
488(4)
Estoppel
492(2)
Action against a collecting bank
494(6)
Recovery problems in cases of negotiable instruments
500(6)
Special problems
500(1)
Nature of operative mistake
500(3)
Payee's change of position
503(3)
Proprietary restitutionary claims
506(6)
At common law
506(4)
In equity
510(2)
The Giro System and Electronic Transfer of Funds
512(69)
Introduction and basic concepts
512(10)
The nature of a giro transfer
513(1)
Terminology
514(1)
Credit and debit transfers
515(1)
Clearing and settlement
515(4)
Clearing systems and clearing rules
519(1)
International funds transfers
520(2)
Domestic giro forms and their comparison with cheques
522(6)
Individual money transfer forms (bank giro credit transfers)
522(1)
Standing orders
523(1)
Direct debiting
524(2)
Comparison of giro forms with cheques
526(2)
The clearance of giro transfers
528(9)
Paper clearing and electronic clearing
528(1)
The manual clearing procedure
528(2)
Clearance through BACS
530(2)
Clearance through CHAPS
532(1)
CHAPS sterling
532(3)
CHAPS euro
535(1)
NewCHAPS
536(1)
International money transfers
537(5)
Methods in use
537(1)
The use of bankers' drafts
538(1)
Mail and telegraphic transfers
539(2)
SWIFT transfers
541(1)
The legal nature of money transfer orders
542(22)
The problem area
542(2)
Are money transfer orders negotiable instruments?
544(2)
Is a money transfer order an assignment?
546(3)
Position of the originator's bank
549(7)
Position of the correspondent (intermediary) bank
556(2)
Position of the beneficiary's bank
558(6)
Time of payment and countermand
564(14)
Complexity of the problem
564(2)
Cases involving countermand of payment and reversals of credit entries
566(8)
Cases involving payments out of time
574(3)
Comparison of the two types of cases
577(1)
Confidentiality of information
578(3)
Payment Cards
581(35)
Available cards reviewed and classified
581(3)
Tripartite credit cards
584(3)
Charge cards
587(2)
Cheque 'guarantee' cards
589(4)
Debit or EFTPOS cards
593(1)
Cashcards
594(3)
Electronic purses or digital cash cards
597(1)
The provisions of the Consumer Credit Act 1974
598(10)
Cards affected: meaning of 'credit token' and 'credit-token agreement
598(5)
Misuse of cards
603(2)
Unsolicited credit tokens
605(1)
The credit-token agreement
606(1)
Nexus with underlying transaction
607(1)
Distance marketing
608(1)
Criminal proceedings for misuse of card
609(3)
Payment cards and the Banking Code
612(4)
Application of the Code to 'cards' and 'electronic purses'
612(1)
Liability for misuse
612(2)
Other provisions
614(2)
The Bank's Role in Collecting Cheques
616(40)
The bank's role in the transaction
616(1)
The true owner's cause of action
616(6)
Collection and discount distinguished
622(3)
The collecting bank's protection
625(14)
Background: section 82 and section 4
625(1)
Analysis of section 4(1)
626(2)
Negligence: general standard
628(2)
Negligence in opening an account
630(3)
Negligence in collection: frauds by employees, trustees, and agents
633(2)
Negligence related to crossings
635(2)
Negligence related to indorsements
637(1)
Negligence: summary
638(1)
The defence of contributory negligence
639(2)
The discounting bank's protection
641(2)
The processing bank's position
643(4)
The collecting bank which is also the paying bank
647(4)
The collecting bank's duty to its own customer
651(5)
The nature of problems arising
651(1)
The collecting bank's duty to effect presentment
652(3)
Notice of dishonour
655(1)
Incidental Services Performed by Banks
656(31)
The common thread
656(2)
Bankers' references
658(17)
The rights of the person investigated
658(4)
Position of the enquirer
662(13)
Giving advice on financial investments
675(5)
The banker as bailee and custodian
680(7)
Safe deposit services
680(3)
Items deposited by foreign banks
683(1)
Safe deposit boxes
684(3)
PART III THE BANK AS FINANCIER AND LENDER IN DOMESTIC TRANSACTIONS
Current Account Financing and Loans
687(58)
Overdrafts and loans compared
687(2)
Overdrafts
689(17)
Prevailing practice
689(1)
The legal nature of an overdraft
690(4)
The right to charge interest
694(5)
Appropriation of payments
699(4)
Consumer credit aspects
703(3)
Bank loans
706(10)
Scope
706(1)
Review of the transaction by the bank
707(5)
Consumer credit implications
712(4)
Syndicated loans
716(9)
Distinguishing between syndicated loans and loan participations
716(1)
Mechanics of syndication
717(1)
Terms of a syndicated loan agreement
717(2)
Legal nature of a loan syndicate
719(3)
Loan participations
722(3)
Lender liability
725(20)
Pre-contractual negotiation
725(3)
Management and termination of the facility
728(4)
Insolvency of the borrower
732(3)
Environmental liability
735(1)
Indirect consequences
735(2)
Direct liability
737(6)
Conclusion
743(2)
Securities for Bankers' Advances: The General Part
745(14)
Nature, purpose, and classification of securities
745(5)
The nature of 'security'
745(3)
The purpose of security
748(1)
Classification of securities
748(2)
The effect of valid security in insolvency
750(2)
The right of redemption
752(2)
Effect of the Consumer Credit Act 1974 on securities
754(5)
Basic terms and structure of Part VIII of the Act
754(2)
Form of security
756(1)
Information to be supplied by the creditor
757(1)
Realization of security
757(1)
Anti-evasion provision
758(1)
Proprietary Securities
759(36)
Scope
759(1)
Mortgages over land
760(17)
Introduction
760(1)
The subject-matter of the security
761(1)
Legal and equitable mortgages and equitable charges
762(2)
Protection of mortgagees
764(1)
Second or subsequent mortgages
765(1)
Priorities
766(2)
Tacking
768(1)
Remedies of mortgagee
769(3)
Protection of mortgagor
772(2)
Common clauses
774(1)
Effect of the Consumer Credit Act 1974
774(1)
Effect of the Financial Services and Markets Act 2000
775(2)
Proprietary securities over goods
777(4)
General considerations
777(1)
Chattel mortgages
778(1)
Hypothecation
778(3)
Effect of the Consumer Credit Act 1974
781(1)
Securities granted by companies
781(14)
Nature and flexibility of companies' charges
781(2)
Fixed and floating charges
783(2)
Registration of company charges
785(2)
Priorities
787(2)
Special rules governing floating charges
789(2)
Crystallization of floating charges
791(3)
Assessment
794(1)
Possessory Securities
795(12)
The pledge
795(8)
Utilization of pledges by banks
795(2)
Standard conditions in pledges and rights conferred on banks
797(1)
Pledge of negotiable instruments and marketable securities
798(1)
Pledge by means of documents of title
799(2)
Field warehousing
801(1)
Effect of the Consumer Credit Act 1974
802(1)
The banker's lien
803(4)
Choses in Action as Security
807(39)
General principles
807(3)
Security over book debts and other receivables
810(15)
Meaning of 'book debts' and 'receivables'
810(1)
'Receivables financing'
811(1)
Fixed or floating charge?
812(3)
Restrictions on assignment
815(3)
Registration, and the effect of failure to do so
818(2)
Priorities
820(4)
Asset Securitization
824(1)
Bank balances as security
825(8)
Basic problems
825(1)
Security to a bank with which funds are deposited: set-off in equity and insolvency
826(1)
Security to a bank with which funds are deposited: contractual set-off and flawed asset arrangements
827(3)
Charges over bank balances
830(3)
Life policies as security
833(3)
Stocks and shares etc. as security
836(10)
Stocks and shares etc. as security
836(2)
Types of security: legal mortgage and equitable mortgage or charge
838(1)
Advantages and disadvantages of equitable mortgage or charge
839(2)
Advantages and disadvantages of legal mortgage
841(2)
Priorities
843(1)
Registration
844(2)
Guarantees
846(17)
Definitions and distinctions
846(2)
Formation
848(1)
Co-extensiveness
849(2)
Vitiating factors
851(2)
Interpretation of guarantees
853(2)
Discharge of the guarantor
855(4)
Rights of the guarantor
859(2)
Acceptance credits
861(2)
Index 863

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