The Basic Principle of Loss Allocation for Unauthorized Checks

Abstract

It is commonly thought that the Uniform Commercial Code adopts a negligence principle as the basis of loss allocation for the check system. This Article argues that this common assumption is wrong. Instead, the fundamental principle of the check system and all other payment systems is that the burden of unpreventable losses should rest with the providers of the payment system rather than with the users of the payment system. The Article shows that the old English case of Price v. Neal is not, as is commonly thought, an anomaly but is instead entirely consistent with the basic principle of loss allocation for the check system. The Article suggests that a correct understanding of the basic principle of loss allocation has significant implications for the enforceability of agreements between customers and banks concerning checking accounts. Specifically, an approach that appears to be emerging in recent cases concerning forged facsimile signatures on checks is shown to be fundamentally misguided.