Framing Contractual Freedom within the Precept of ‘Honesty, Reliability and Integrity’
Alexander F.H. Loke
Citation: [2012] Sing JLS 174
Might a bank rely on a conclusive evidence clause against a customer when its employee has knowingly entered into unauthorised transactions on the customer's account? Thiswas one of the key issues before the Singapore High Court in Jiang Ou v. EFG Bank AG. The issue brought into question the considerations that shape the contours of contractual freedom, and how the law should respond when a conclusive evidence clause is relied upon to defeat the claim that the bank statement is inaccurate by reason of fraud perpetrated by the bank's employee. The decision invoked both the Unfair Contract Terms Act, as well as public policy at common law to defeat the bank's reliance on a conclusive evidence clause. While preventing the bank from shifting the consequences of fraud originating from within the banking organisation may be intuitively appealing, the decision carries broader implications for the drafting of conclusive evidence clauses and raises questions about the ambit of the common law prohibition.