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Duty of Warning and Risk of Indebtedness
In order for a banker to be held accountable for a duty of warning, there must be a risk of indebtedness resulting from the loan and the banker must have been aware of this risk. The financial capacities of the borrower are typically assessed by the banker during the loan application process. However, the Court of Cassation does not impose stringent requirements on the investigations conducted by the credit institution. In the absence of any apparent anomaly, the institution is not obligated to verify the accuracy of the borrower’s declarations regarding their assets and income.
The Absence of Duty to Warn Based on Financial Situation
The Court of Cassation further demonstrates its leniency by agreeing with the decision of the appeal judges that a banking ban, which includes a prohibition on issuing checks, is insufficient to establish the borrower’s precarious financial situation. Consequently, the lender is not obligated to provide a duty of warning.
Furthermore, the Court clarifies that such a situation does not impose an additional research burden on the lender to investigate the borrower’s personal circumstances. The absence of a duty to warn in this context highlights the limited responsibility of the lender in situations where a borrower faces financial constraints.
This ruling reflects the Court’s position regarding the duty of warning in the banking sector. It underscores that the duty is contingent upon the existence of a documented risk of indebtedness that the banker has been able to observe. It also emphasizes the Court’s reluctance to impose extensive investigations on credit institutions unless there are apparent anomalies in the borrower’s declarations. As a result, this decision reinforces the boundaries of the duty of warning for banks and places the onus on borrowers to provide accurate information about their financial situation.
