Cases involving cheques are now very rarely submitted to the Ombudsman, as they are hardly ever used anymore in Switzerland. Some banks have even completely discontinued their cheque services. This sometimes leads to complaints because clients have difficulties to cash cheques that they have received, usually from foreign issuers. In such cases, the Ombudsman has no choice but to recommend that clients continue to look for collection options or to persuade the cheque issuer to make the payment in another way, e.g. by bank transfer. This can be very difficult, depending on the issuer. However, the Ombudsman cannot force any bank to make a cheque collection.

In this particular case, the client was still not in possession of the money more than a year after presenting the cheque to his bank. He submitted a comprehensive file to the Ombudsman, which showed that his bank had tried in vain to get the Canadian bank that had issued the cheque to pay out the amount of the cheque upon presentation of a copy of the cheque and a letter of indemnity, which would have been a standard procedure among banks. The issuer of the cheque was of the opinion that the notary, who had commissioned it to issue the cheque and had also paid for it, had to sign a declaration of indemnity. For understandable reasons, the notary refused to enter into such an obligation. She had nothing to do with the loss of the cheque, the equivalent of which she had already paid to the cheque issuer.

The client pointed out to the Ombudsman that in the present case it was undisputed who was responsible for the loss of the cheque. This was his bank, where the cheque was lost on its way between the unit that had received it and the cheque department. The bank was nevertheless only willing to pay the client CHF 3 500 for his expenses. The client was of the opinion that the bank had to compensate him in full for the loss and that it should then make its own efforts to mitigate the loss in some way.

The Ombudsman understood the client’s position and asked the bank to consider full compensation. In view of the client’s extensive efforts to resolve the problem, as evidenced in the file, he further suggested that the bank should also provide the client with some compensation.

He was surprised that the bank continued to refuse to make concessions beyond the already offered compensation of CHF 3 500. The bank considered this amount to be very generous. To justify its position, the bank referred to its terms and conditions for cheque and bill of exchange transactions, which stipulated that the client must bear all consequences and disadvantages arising from the loss, forgery, damage or misuse of a cheque, unless the bank had violated the duties of care typical in the banking business. She also mentioned her previous efforts to resolve the problem with the cheque issuer, which had unfortunately been unsuccessful. She had therefore invited the client to try to find a replacement for the cheque or an alternative payment. She further pointed out that the claim from the cheque was not extinguished and that the client could therefore benefit from a double payment if he was fully compensated. Finally, she accused the client of a lack of cooperation in finding a solution so far.

The Ombudsman asked the client’s bank to fundamentally reconsider its position. The client’s willingness to cooperate was clearly demonstrated by well-documented efforts to resolve the problem caused by the loss of the cheque by the bank. Since it was undisputed that the latter was solely responsible for the loss, a breach of its professional diligence was in focus. The Ombudsman therefore considered the reference to the liability provision in their terms and conditions to be mistaken. Finally, there were no indications of dishonest or abusive behaviour on the part of the client and thus no room for corresponding insinuations.

Even after the second intervention, the bank basically stuck to its arguments, but in order to settle the dispute amicably, it showed itself willing to pay the client the amount of the cheque against the signing of a declaration of assignment for all rights arising from the cheque and the underlying transaction. It did not offer any compensation for the client’s expenses.

The client accepted the solution and returned the signed agreement with the remark that he had great difficulty with the bank’s argumentation and its approach in this case. He indicated that he considered such behaviour to be damaging to the reputation of Swiss financial institutions. In principle, the Ombudsman succeeded in finding a solution to this case. However, he had to concede that the concerns expressed by the client were justified to a certain extent and thus considered the result only a partial success.