Company Wrongly Paying an Individual

[CaptainMannering]

Hi All

 

 

Looking for some advice here re my son. I know there is a moral issue here, which I too feel, but I am looking for the legal standing. Its a bit of a strange one....

 

 

Ok so 18 months ago an individual from a national property sale and letting agency wrote to my son via email regarding a rental property, basically covering the state of the property and a maintenance issue. My son advises he thought this was a [problem]. My sons name is "Jacob", however the email was addressed to "John", so for me the individual has maybe got a character wrong in the email address and sent it to the wrong person.

 

 

My son replied to the email acknowledging the points raised, to which the individual again replied to my son. My son then asked the individual if he could alter the bank account and supplied them with an old bank account and sort code of his. He did not receive a reply from the individual.

 

 

So 2 months later a payment is made into his account, this has continued for over 14 months. Now sensibly my son hasn't spent this money he has left it in the account. the payments were made like clockwork every month up until 3 months ago when they stopped. My thought are either the company paying him or the individual who should have been receiving the payments from the company has noticed the error and the payments have stopped.

 

 

No word from my sons bank at all, and no contact by email from the individual at the company (in fact no contact from them for 16 months). Obviously due to data protection the bank cannot give my sons details to the company, but it is my belief that they cant say to their bank the monies were paid incorrectly as they weren't. I'm sure the company should have policies in place for them to confirm identities prior to making amendments on account like this.

 

 

Is it possible that as the company would not want this story making public that they have simply wrote this off to negate and negative publicity? As I say I understand the moral issue here but what is the legal stance? At what point does the money become my sons, is there a timescale? I have no control over what he does as he is an adult all I can do is educate him, I am adamant that should this substantial sum become his then he donates a large percentage to charity. He claims he will take the story to journalists and hopes to make a story from it.

 

 

If it was down to me I would email the individual at the company but he wont give me any details. I don't believe on the face of what he's telling me he has done anything legally wrong, I believe it is down to the company failing to carry out security checks. Can anyone help please

 

 

Many Thanks

[renegadeimp]

Since the money is untouched... Have you actually spoke to the company concerned?

[CaptainMannering]

Since the money is untouched... Have you actually spoke to the company concerned?

 

Hi, no he advises me he hasn't

[renegadeimp]

Then that should be your first thing to do. Contact them and find out what they say.

[CaptainMannering]

Thanks renegade, that's exactly what I wanted to do, however my son is less than forthcoming with the companies details.

 

What would you be saying to them in reply? Thank you

[Sidewinder]

He claims he will take the story to journalists and hopes to make a story from it

[/Quote]

 

Probably unwise. My view (and I stand to be corrected) is that as the email was clearly sent to the wrong recipient, and that your son then asked for money to be sent to a different account might be construed as fraud. There would be a big difference between receiving the money innocently due to another's mistake over asking for funds to be diverted where he knew that there was no entitlement to receive them.

 

As for limitation? Probably 6 years from cause of action as per S.32 Limitation Act?

[fletch70]

I would be inclined to agree with sidewinder

 

It is one thing to accept and even spend money that is paid into your bank account by mistake but it is another to actually provide new details for the money to be paid into. I do not think it matters at all that the company concerned was wrong in contacting your son and not double checking the details

 

I am guessing that this could potentially be fraud by misrepresentation - which would almost certainly end up in crown court.

 

Whatever the outcome, if it led to a criminal record , it would cause a lot of problems for your son . So many things now ask if you have any unspent convictions, insurance, job applications, potentially going abroad.

 

If requested, the bank could be forced into revealing your son's identity

 

I do think in this case then contacting the firm concerned is the best policy - and keep records of anything you do

[fletch70]

Oh and as for limitations- there are no limitations if fraud is concerned

[CaptainMannering]

Probably unwise. My view (and I stand to be corrected) is that as the email was clearly sent to the wrong recipient, and that your son then asked for money to be sent to a different account might be construed as fraud. There would be a big difference between receiving the money innocently due to another's mistake over asking for funds to be diverted where he knew that there was no entitlement to receive them.

 

As for limitation? Probably 6 years from cause of action as per S.32 Limitation Act?

 

Hi sidewinder thanks for your response.

 

I will certainly advise him against that. I agree that it does look like the email was sent to him in error, I don't feel however he has commuted any fraud. He has asked for bank details to be changed, he hasn't claimed to be someone else in terms of supplying false information etc. He believed the original mail was a s c a m or someone phishing. The company must be at fault in some way?

 

Appreciate it is a bit of a strange one

[honeybee13]

Hi sidewinder thanks for your response.

 

I will certainly advise him against that. I agree that it does look like the email was sent to him in error, I don't feel however he has commuted any fraud. He has asked for bank details to be changed, he hasn't claimed to be someone else in terms of supplying false information etc. He believed the original mail was a s c a m or someone phishing. The company must be at fault in some way?

 

Appreciate it is a bit of a strange one

 

Hello there.

 

I'm a bit confused by this. Did your son have a property that was being rented out at the time he got the email?

 

HB

[honeybee13]

Thread moved to General Legal Issues.

 

HB

[CaptainMannering]

Hi HB no he doesn't have a property rented out. He tells me that he believed the email was a s c a m and only replied out of curiosity

[renegadeimp]

It really looks like he knows whats going on, has given you half the story and wants to keep the money for himself. A very bad idea. He needs to contact the company and find out what went wrong.

 

lets say he waits a bit, then spends it. Then a letter ends up on his doormat for the full amount, payable within 14 days or they go to court.

[CaptainMannering]

It really looks like he knows whats going on, has given you half the story and wants to keep the money for himself. A very bad idea. He needs to contact the company and find out what went wrong.

 

lets say he waits a bit, then spends it. Then a letter ends up on his doormat for the full amount, payable within 14 days or they go to court.

 

I have to be inclined to agree with you there may be more to this than he is telling me, it would be nieve of me to believe he had no ulteria motive. what would you advise putting in a response?

Thanks

[Vauban]

I have to be inclined to agree with you there may be more to this than he is telling me, it would be nieve of me to believe he had no ulteria motive. what would you advise putting in a response?

Thanks

 

Difficult to be definitive without seeing the emails, but I think the facts as you describe them here probably do constitute fraud by misrepresentation. I'm afraid I don't buy your son's explanation that he thought the email was from [problematic]: who would send their bank details willingly to fraudsters? And once it was clear that a payment had been made, your son should have realized this was not a [problem]. He knew the money being paid to him was not his, and having failed to act up to now, it looks like he's seeking to profit from his fraudulent.

 

So: come clean proactively with the company and pay them the money. And hope they do not report the crime and seek to press charges.

 

Does raise one question though: did the genuine beneficiary not realise that they weren't getting their money? Weird!

[CaptainMannering]

I take your points and I'm shocked at how serious this could be interpreted. I asked the question re giving his details to potential spammers and he said it was an old account with no money in it so no harm could be done.

Is there a way he could approach this in such a way to negate any blame?

 

Ref the genuine beneficiary my thoughts were the same, possibly a very wealth individual who doesn't check their accounts

[BazzaS]

 

I am guessing that this could potentially be fraud by misrepresentation - which would almost certainly end up in crown court.

 

 

I share your concern of a criminal offence.

 

It would be fraud by "false representation", though (not "misrepresentation")

 

Misrepresentation is a tort (a civil wrong), but although it is "wrong" it isn't deliberate. Because fraud requires intent, fraud and "misrepresentation" are mutually exclusive since one is deliberate and the other can't be deliberate!.

[CaptainMannering]

BazzaS what would be your suggested course of action? Thank you

[BazzaS]

BazzaS what would be your suggested course of action? Thank you

 

I'm not going to suggest anything that others haven't already suggested.

 

http://www.legislation.gov.uk/ukpga/2006/35/section/2

 

Fraud by false representation

 

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

So, the email with the new bank details creates a misleading implied representation (that the details of the new bank account are that of the person entitled to receive the rent).

Your son knows that is a misleading implied representation.

Dishonesty is assessed using the parameters of a case (R v Ghosh), and it would be hard to say that either he didn't think it would be dishonest OR that he didn't think that reasonable people would not consider it dishonest, if they come looking for him before he returns the money admitting what has happened.

 

Clearly there is a risk of exposing another to a loss.

 

So, contact the company and ensure the money is returned. Then he can claim he never intended to be dishonest : there might still be a prosecution, but

a) if prosecuted it introduces both

i) mitigation if convicted,

ii) a possible defence, and

b) it may mean he completely avoids prosecution.

 

The fact it went on for 14 months might be tricky to explain, unless he can say it was an old account and he didn't realise ....... that may not sit too well with him having supplied that account's details, though!

[CaptainMannering]

Ok thanks for the effort on your reply. If he can't get back in touch through to the company by replying to their email should he contact his bank and make them aware?

[BazzaS]

Ok thanks for the effort on your reply. If he can't get back in touch through to the company by replying to their email should he contact his bank and make them aware?

 

Both.

 

Even if that email address doesn't get a response he knows who the company are anyway?.

 

If he doesn't get a rapid response from the company get the bank to return the money as a mistaken credit.

[martin2006]

The genuine recipient will no doubt already be asking where his money went, a little digging will reveal the account it was paid into and the emails will show false representation as described by Bazza above.

I think this is a time bomb for your son which will at some future point explode in his face, with potentially devastating consequences.

[slick132]

Use the email first and see if that gets a response.

 

I suggest he simply tells them they have credited money to his account and it's available to be reclaimed as it's been paid in error.

 

I would not offer any explanation, excuse, reason, etc at this stage.

 

[CaptainMannering]

Thanks all. I suppose the only hope is that the individual who sent the emails and dealt with this has deleted the emails to cover their tracks and save their back side, just with it being 2 months since they have made a payment and no news wrong his bank or the company this just seems like an excessive amount of time.

 

I will certainly take you advise and contact the bank and the company tomorrow.

 

I don't suppose playing ignorant and saying he didn't send the emails would work would it. I know he's obviously still received the monies but would willingly give this back?

[slick132]

I don't suppose playing ignorant and saying he didn't send the emails would work would it. I know he's obviously still received the monies but would willingly give this back?

 

At this stage, there's no need to do anything other than arrange for the money to be returned.

 

We can deal with matters as and we they unfold.