PPE 12/2023
Zajęcie rachunku bankowego a kredyt w rachunku
dr hab. Artur Nowacki, prof. UW
Katedra Prawa Handlowego WPiA Uniwersytetu Warszawskiego; ORCID: 0000-0003-0513-115X
ABSTRACT
Bank Account Seizure and an Overdraft
First of all, the article answers a question if in the case where a bank grants an overdraft that is used by an account holder, crediting or a transfer to an account leads to satisfying the liability of the bank with the credit repayment if the account has been seized. Secondly, the paper aims at determining consequences of a seizure if an account holder has not used a granted overdraft yet, in particular whether an overdraft drawdown liability is an object of seizure. The article supports the position that if there is debt due to an overdraft, the bank should not disclose such funds as money kept on an account; consequently, crediting or transfer to a bank account leads to satisfying the liability due to an overdraft, rather than the satisfaction of an enforcing creditor who has obtained the seizure of a bank account. Seizure of a bank account means the seizure of liabilities of a bank account holder for the repayment of funds kept at the bank, but does not involve satisfying an enforcing creditor using any and all benefits received by a bank from a debtor enforced against with reference to a bank account number. A debtor who is a holder of a bank account, just as he is free to choose which of his debts are to be repaid, has also the freedom of choosing between his performance for the account of a debt or a credit, hence transferring funds to be kept on a bank account. With regard to the latter of the above-mentioned issues, the article defends the position that enforcement against a bank account is an enforcement against a bank account in the meaning of article 725 of the Civil Code, rather than in particular against a bank account sensu largo, which means that enforcement against a bank account does not cover liabilities due to an overdraft drawdown, but only liabilities for the reimbursement of funds kept on a bank account.
Keywords: bank account, seizure, overdraft, debit