Subdivision 3
Liability
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7331. Liability of payment service provider for payment transaction made on basis of unique identifier
(1) If a payment order is executed in accordance with the unique identifier, the payment order shall be deemed to have been executed correctly with regard to the payee specified by the unique identifier.
(2) If the payment order unique identifier provided by the client of the payment service provider is incorrect, the payment service provider shall not be liable for the failure to execute or incorrect execution of the payment transaction in conformity with § 7333 of this Act unless otherwise provided by law. If the client of the payment service provider has provided other relevant information in addition to the payment order unique identifier to the payment service provider, the payment service provider shall be liable for the execution of the payment transaction only in accordance with the unique identifier provided by the client.
(3) If the payment service provider is unable to associate the unique identifier provided by the payer with any payee or payment account, the payment service provider shall notify the payer or the other payment service provider thereof and return the payment amount.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7332. Liability of payment service provider for unauthorised payments
(1) A payment service provider of the payer has no right to charge a fee or require compensation for the expenses related to executing a payment from the payer for an unauthorised payment.
(2) In the event provided for in subsection (1) of this section the payment service provider is required to return the payment amount immediately to the payer. Where the payment amount was debited from the account of the payer, the account shall be restored to the state in which it would have been had the unauthorised payment not been made.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7333. Liability of payment service provider for unexecuted or incorrectly executed payments
(1) If a payment order is initiated by the payer, the payer may require immediate refund of the payment amount without any deductions from the payment service provider in the case of an unexecuted or incorrectly executed payment. Where the payment amount was debited from the account of the payer, the account shall be restored, where applicable, to the state in which it would have been had the account not been debited. Where unjustified deductions have been made from the payment amount, the payment service provider of the payer shall forward the deducted amounts promptly to the payee.
(2) If the payment service provider of the payer proves that the payment amount has reached the account of the payment service provider of the payee in time and without deductions in accordance with the provisions of § 728 of this Act, the payment service provider of the payer shall have no liability on the basis of subsection (1) of this section.
(3) If a payment is initiated by or through the payee, the payee may require in the case of an unexecuted or incorrectly executed payment that the payment service provider of the payee re-transmit the payment order immediately to the payment service provider of the payer.
(4) Where a payment is unexecuted or incorrectly executed and the payment service provider of the payee proves that it has performed its obligations, the payment service provider of the payer shall immediately return the payment amount without deductions to the payer or restore the state of the account of the payer in accordance with the first and second sentences of subsection (1) of this section. Where unjustified deductions have been made from the payment amount, the payment service provider of the payee shall make the deducted amounts immediately available to the payee.
(5) A client of the payment service provider has no rights provided for in the first and second sentences of subsection (1) and in subsection (3) of this section if the payment order has been executed in conformity with the unique identifier provided by the client of the payment service provider. In such case the payer may require from the payment service provider to assist the payer in recovering the payment amount to the extent possible. A payment service provider has the right to charge a fee therefor if the charging of a fee has been agreed on in the payment service contract.
(6) In the cases specified in subsections (1) and (2) of this section a client of the payment service provider has the right to require from the payment service provider a refund of the paid fees, and payment of interest on arrears, which the client was charged by the payment service provider with the unexecuted or incorrectly executed payment or by which the payment service provider debited the account of the client.
(7) Where a payment has not been executed or has been executed incorrectly, the payment service provider shall, at the request of the client, determine the relevant facts related to the execution of the payment transaction regardless of its liability and notify the client of the results of the investigation.
(8) A payment service provider shall also be liable in accordance with this section if the liability is actually attributable to the payment intermediary chosen by the payment service provider. A payment service provider shall not be liable if the responsible payment intermediary has been actually chosen by the client of the payment service provider. In such case the payment intermediary chosen by the client shall be liable to the client of the payment service provider.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7334. Burden of proof
(1) Where there is a dispute on whether a payment transaction has been authorised or correctly executed, the payment service provider shall prove that the payment transaction has been authenticated, correctly documented and recorded in the accounts and no deficiency has affected the performance of the transaction.
(2) Where there is a dispute on whether a payment transaction made by means of a payment instrument has been authorised, only the documenting of the use of the payment instrument by the payment service provider does not suffice to prove that:
1) the payment has been authorised;
2) the payment instrument has been used fraudulently;
3) one or several of the requirements provided for in § 73310 of this Act have been violated;
4) one or several of the conditions for the issue and use of the payment instrument have been violated deliberately or through gross negligence.
(3) Authentication means a procedure which allows the payment service provider to verify the use of a specific payment instrument, including its personalised security features.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7335. Right of recourse
If the circumstances of liability of the payment service provider in accordance with § 7333 of this Act are attributable to another payment service provider or a payment intermediary, the payment service provider may require compensation for damage from the other payment service provider or the payment intermediary if it has arisen from the performance of the demands of the client of the payment service provider on the basis of the above section.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7336. Specifications for refund of payment initiated by or through payee
(1) A payer has the right to require from the payment service provider a refund for a payment made in accordance with a payment order initiated and authorised by or through the payee to the extent of the total amount transferred, if both of the following conditions are met:
1) the exact amount was not determined at the time of authorisation of the payment transaction;
2) the transferred amount exceeds the amount that the payer could have presumed considering the terms of its payment service contract, the amounts of earlier payments and other circumstances.
(2) The circumstances specified in subsection (1) of this section shall be proven by the payer at the request of the payment service provider.
(3) A payer and a payment service provider of the payer may agree that in the case of direct debit the payment service provider shall make a refund regardless of whether the conditions provided for in subsection (1) of this section are satisfied.
(4) Upon application of clause (1) 2) of this section the payer cannot rely on reasons related to the exchange rate if the reference exchange rate has been agreed on with the payment service provider in accordance with the provisions of clause 711 (1) 10) or 7111 (1) 4) of this Act.
(5) The parties may agree that the payer has no right to get a refund if the payer has given consent to the payment service provider for the execution of the payment transaction and, where applicable, if the payment service provider or the payee has notified the payer of the future payment transaction or has made the information concerning the future payment transaction available in an agreed manner no less than four weeks before the execution of the payment transaction.
(6) The payer has the right to get the refund provided for in this section if the payer files a claim for a refund to the payment service provider within eight weeks from the debiting of the payment amount.
(7) A payment service provider is required, within ten business days after receipt of a claim for a refund, to refund the payment amount in full or to present its reasons for refusal of the refund. In the case of refusal, a reference shall be made to a person or institution which the payer can contact in the procedure provided for in the Consumer Protection Act, should the payer not agree with the specified reasons. A payment service provider has no right to refuse the refund in the case provided for in subsection (3) of this section.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7337. Obligation to notify client in case of unauthorised payment transaction or incorrectly executed payment
(1) A client of the payment service provider shall notify the payment service provider of an unauthorised payment transaction or an incorrectly executed payment promptly after becoming aware thereof.
(2) A client of the payment service provider has no right to file any claims or objections provided for in this Subdivision if it has failed to present the notice provided for in subsection (1) of this section to its payment service provider within 13 months after the date of unauthorised debiting of its account or the date of debiting of an incorrectly executed payment.
(3) Subsection (2) of this section applies only if the payment service provider has, where applicable, notified the client or made the information concerning the execution of the payment order available in accordance with § 727 or 7271 of this Act.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7338. Liability of payer in connection with unauthorised payments
(1) If an unauthorised payment has been executed using a lost or stolen payment instrument, the payer shall bear the risk, but not more than to the extent of the limit amount agreed on with the issuer of the payment instrument, and at most to the extent of the amount equalling 150 euros. The payer shall also bear the risk if the payment instrument has been used in another unauthorised manner or if the payer has not duly kept the personalised security features.
(2) The limit provided in subsection (1) of this section does not apply if the unauthorised payment involves fraud by the payer or if the payer, deliberately or due to gross negligence, violates:
1) one or several of the obligations provided for in § 73310 of this Act;
2) one or several of the conditions for the issue and use of the payment instrument.
(3) A payer shall not bear the risk in accordance with subsection (1) of this section where damage is caused by the use of the payment instrument after giving a notice provided for in subsection 73310 (2) of this Act, except if the payer acts fraudulently.
(4) A payer shall not bear the risk specified in subsection (1) of this section if the payment service provider has not performed the obligation provided for in clause 73311 (1) 3) of this Act, except if the payer acts fraudulently.
[RT I 2010, 2, 3 – entry into force 22.01.2010]
- 7339. Specifications of liability and release from liability
(1) The filing of claims provided for in this Subsection on other grounds is not permitted. This does not preclude or restrict the filing of other claims on other grounds, including a claim for the compensation of damage on the basis of § 115 of this Act.
(2) Liability under this Subdivision is precluded if the claims filed thereunder are based on unusual or unforeseen circumstances which cannot be affected by the party referring to such circumstances and which would be unpreventable regardless of all the efforts undertaken to prevent these or if the payment service provider performs the obligation arising from law.
[RT I 2010, 2, 3 – entry into force 22.01.2010]