Every bankcard transaction, no matter how commonplace, is based on a complex contractual balance. For the retailer, accepting this means of payment represents a major commercial lever, but also exposes him to a risk: that of the default of the cardholder and his account. While the guarantees offered to the consumer are widely known, the protection of the seller often remains in the shadows. Yet there is a fundamental legal mechanism that secures payment by the professional: the del credere of the bank issuing the card. This is a guarantee that commits the customer's bank to honouring the transaction, even in the event of the customer's insolvency. Understanding this principle is essential for any merchant wishing to control the risk of non-payment and secure their business.
The del credere principle: foundations and specific features in banking law
The del credere is an ancient mechanism that finds its specific features of banking law This is a modern form of security, particularly for securing electronic transactions. It is an agreement whereby a person, the del credere, guarantees to the other party the proper performance of a transaction. In banking law, it takes the form of a commitment by signature: the bank does not lend money, but its credibility, by guaranteeing payment of a claim in the event of default by the principal debtor. This guarantee, which constitutes a credit transaction within the meaning of article L. 313-1 of the French Monetary and Financial Code, is always attached to an intermediation contract, in which the credit institution acts on behalf of its client, the creditor.
Origins and development of the concept of del credere
The term "ducroire" comes from the Italian "del credere", meaning "of trust". Historically developed in the Middle Ages in Italy for commercial and financial transactions, this mechanism was incorporated into French law to transfer the burden of market risk from the principal to his commission agent. In the banking sector, it first took off in international trade. An exporting seller, unfamiliar with the solvency of a foreign buyer, could demand a performance bond from the buyer's bank, or from his own bank. Today, while documentary credit has largely superseded these practices in international trade, the del credere principle has found a renewed field of application domestically with the dematerialisation of payments, and particularly with the widespread use of bank cards in France.
The legal status of bank del credere: an autonomous guarantee
The legal nature of del credere has been the subject of doctrinal debate. Some have likened it to a form of credit insurance, with the bank acting as insurer against the risk of insolvency. Others have tried to liken it to surety, where a guarantor undertakes to pay the debt of a third party. However, these qualifications have been rejected. Unlike insurance, del credere is not based on a pooling of risks. Unlike suretyship, which is an undertaking ancillary to the principal debt, del credere is a principal, autonomous contract concluded for valuable consideration between the credit institution and the creditor. Modern commentators agree that del credere is an autonomous guarantee of an indemnity nature, based on the bank's commercial interest in facilitating and securing transactions for its customer.
The del credere in the bankcard payment system: a shield for the merchant
In the card payment system, the issuing bank (the cardholder's bank) plays the central role of del credere. When a customer pays by card, a triangular relationship is established between the cardholder, the merchant and the issuing bank. It is the issuing bank that, in the last resort, guarantees the merchant payment for the transaction, irrespective of the actual creditworthiness of the customer and the funds available in the customer's bank account. This guarantee is one of the pillars that ensures the confidence of professionals in this means of payment. The guarantee obligation does not fall on the merchant's bank, but on the cardholder's bank, even if the merchant receives the funds via his own bank or branch.
The card acceptance contract: merchant obligations and protection
To benefit from this protection, merchants must join the card payment system by signing an acceptance contract with their own bank. This document, which is a membership contract, defines the rights and obligations of each party for a specified period. To fully understand the protection levers and the resulting obligations, a detailed analysis of the standard acceptance contract clauses is essential. In particular, it requires the merchant to comply scrupulously with the security procedures laid down. Failure to comply with these rules may result in outright loss of the benefit of the payment guarantee, or even termination of the contract. This contract, concluded between professionals, is not subject to the provisions of the Consumer Code on unfair terms, but must comply with the competition law in force.
The basic guarantee and the authorisation threshold: coverage mechanisms
The payment guarantee offered to merchants is structured around two main mechanisms. Firstly, a "basic guarantee" automatically covers all transactions up to a certain amount, a ceiling set in the acceptance contract. As long as the payment does not exceed this threshold, the merchant is assured of being paid, provided he has followed the verification procedure laid down for the card. Secondly, for any transaction where the amount exceeds this limit, the merchant is obliged to request authorisation from the interbank authorisation centre via his payment terminal. If authorisation is granted, the guarantee is extended to the full amount of the transaction. On the other hand, if they fail to request authorisation, the transaction is no longer guaranteed at all, not even for the fraction corresponding to the amount of the basic guarantee provided.
When the payment guarantee is called into question: cases of non-guarantee and exemption
The del credere guarantee is not absolute. The issuing bank may be released from its payment obligation in specific situations, mainly when the merchant has committed a fault or fraud. The aim is to penalise behaviour that breaks the trust necessary for the system to function properly. The beneficiary of the guarantee, the merchant, loses his right if he does not respect the terms of the contract that binds him to his bank.
The trader's fault: non-compliance with procedures and diligence
The merchant's fault is the most common reason for exonerating the bank. This can take several forms. Non-compliance with security procedures is the most common example: failing to carry out the usual checks, or failing to send transaction records to the bank within the contractual deadlines. Similarly, if the commercial contract underlying the transaction has not been properly executed by the seller (goods not delivered, services not provided, late delivery), the seller is guilty of a fault that deprives him of the benefit of the del credere. A banker is not obliged to guarantee payment of a transaction based on a non-existent claim. Case law, particularly in Paris, thus sanctions the lack of diligence of a professional who has not respected his own commitments, whether contractual towards his bank or towards his customer.
Beneficiary fraud: manoeuvres and creation of forgeries
The guarantee also ceases if the merchant is guilty of fraud or fraudulent use of the system. Fraudulent practices can take many forms and are designed to obtain undue payment from the bank. They may involve creating fictitious invoices for goods or services never supplied, or "splitting" a sale. The latter technique involves dividing a large transaction into several smaller payments so as to remain systematically below the authorisation request threshold and thus benefit from the basic guarantee in an abusive manner. Faced with these manoeuvres, understanding the fraud mechanisms and the impact on the termination of the guarantee is crucial for any merchant wishing to secure their transactions. Proof of such fraud immediately releases the bank from its payment undertaking.
Commercial ducroire vs. bearer insurance: a key legal distinction
There is often confusion between the merchant's payment guarantee and the cardholder's insurance cover. However, it is vital to distinguish between them. The issuing banker's del credere is a payment guarantee that protects the seller against the buyer's insolvency. Its purpose is to ensure that the merchant is paid for the transaction. Conversely, insurance and assistance services for cardholders (offered by a partner company, often a public limited company with share capital of several million euros, registered in Paris with its head office in France, and governed by the Insurance Code) protect consumers against risks associated with using their card to pay for a purchase or service. It is essential for professionals to take advantage of fundamental differences between the payment guarantee offered to merchants and travel or purchase insurance for the cardholder. The former secures the seller's sales; the latter, often included with a top-of-the-range credit card (such as Gold, Visa Premier or Premium Mastercard), protects the buyer's assets or person. This insurance for the cardholder covers, for example, flight cancellation, loss of luggage, medical expenses abroad, repatriation, death or invalidity, civil liability, or offers reimbursement in the event of a claim on a hire car. Each subscription to a card (Visa, Mastercard, etc.) is accompanied by an information leaflet detailing the scope and exclusions of each cover offered, which is a very distinct service.
Optimising card payment security: practical advice for businesses
For a merchant, maximising the protection offered by the bank del credere and minimising the risk of non-payment requires rigorous management of its contracts and procedures. It is advisable to carry out a regular audit of the bankcard acceptance contract so that you are fully aware of its clauses, particularly the value of authorisation thresholds, the procedure laid down and the time limits for transmitting transactions. Staff training is also a key step: each employee making cash payments must be fully informed of the security procedures to be followed (identity checks, etc.) for each payment event. Finally, by keeping abreast of regulatory changes and new fraud techniques, you can continually adapt your practices. For a full audit of your acceptance contracts and the implementation of secure internal procedures, support from a lawyer specialising in banking lawwho can contact you after an initial call, can prove decisive.
The issuing bank's del credere is an essential but discreet cog in the card payment system, providing essential security for merchants. Knowing how it works, its conditions and its limits is essential for any business. If you are experiencing difficulties with card payments or would like to secure your procedures, our Paris-based firm is at your disposal to analyse your specific situation.
Sources
- Monetary and Financial Code (in particular articles L. 132-1 et seq., L. 313-1)
- Commercial code
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