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It is not doubtful that a paying bank, as a agent of its customer, shall obey the customer’s mandate. If the bank exceeds the authorization by the customer, it may break the contract. This principle subjects to common law defences such as estoppel, ratification, ambiguity of the mandate or specific equitable defence. The similar principle can be found in General Principles of the Civil Law of the P. R.. China and the Chinese Contract Law in relation to agency and commission contracts. Then, what constitutes a genuine mandate? To response this question, the common law, in my opinion, has failed to set out a standard. In an earlier case of Selangor United Rubber Estates Ltd. v Cradock, which concerned a take-over transaction of a company by using the capital of that company, a contravention of company law, and a bank manager transferred the total amount standing to the credit of the company’s account through a cheque drawn on it, it was held the bank broke the duty of care because it failed to make inquiry while finding that the payment was unusual. This decision was argued that it imposed too stringent duty on the bank. In Lipkin Gorman v Karpnale Ltd, which involved an authorized junior partner in a law firm who misused the client account held by his law firm and the bank honored his cheques without enquiry even if the bank manager knew he was a gambler, the standard of care was formulated by Parker LJ as follows:
The question must be whether if a reasonable and honest banker knew of the relevant facts he would have considered that there was a serious or real possibility albeit not amounting to a probability that his customer might be being defrauded. … If it is established then in my view a reasonable banker would be in breach of duty if he continued to pay cheques without enquiry. He could not simply sit back and ignore the situation.
This standard was suggested as a fairer balance between the competing factors on either side. But, as far as I can see, I am still confused where to draw a line between two cases about duty of care. It seems to me that what constitutes a genuine mandate and how a reasonable and honest banker should consider of his customer being defrauded remains to be unanswered and needs the discretion of courts in particular circumstances. The standard appeared to be a subjective one.
The approach of Chinese law dealing with paying bank’s duty may be simple but effective. First of all, it should be noted that although the law allows personal cheques, this kind of cheque is rarely used in practice because most Chinese people prefer trusting cashes and other payment orders rather than trusting personal cheques and banks are reluctant to issue personal cheques to bring trouble to themselves and that the personal customers have never complain for not being given cheque books. Cheques are only widely used by legal persons in China. There is a tradition of using seals for purpose of signing contract or other important documents. The laws respect this tradition and stipulate while a corporate body is registered, it must at the same time register its seals on each of which the name of the corporate is cut. A ‘signature’ of a legal person usually means a seal or a seal with an authorized private signature. If a document (as well as a contract) is stamped with a seal, it will be treated as an authoritative document and the person who affixed the seal on it is treated as authorized person whatever position he held. According with the Law of P. R. China on Negotiable Instruments 1995 ,a circular was issued by People’s Bank of China in December 1995 for execution of this law, which stipulates that a valid negotiable instrument including a cheque drawn by a corporate shall bear three seals namely the corporate seal, the finance department seal and the personal seal of the legal representative or his delegate. Any execution which is different from this specified procedure renders the document void. The samples of these seals must be provided to the bank before they are effective use on cheques. Therefore, the bank’s duty is straightforward and the standard of duty appears to be an objective one. The bank owns a duty to detect whether the seals stamped on a cheque are identical of the original kept samples (at present, checking machines are widely used). If they are identical, the cheque is regards as a genuine mandate of payment drawn by authorization. If not, the cheque must be bounced with a written notice to the payee or bearer. As long as the presentment of a ‘genuine cheque’, the bank does not own the customer a duty of enquiry even though any unusual payment occurred. I believe that until now, the disputes as that of Selangor and Lipkin cases cannot be happened in China.
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