At the end of the 1990s, the circulation of scriptural money in the States of the UEMOA was deeply affected by the deterioration of the financial situation of the banks and by the resurgence of checks and commercial paper (bill of exchange and to order) without provision.

To encourage the use of means of payment (cash medium) as a substitute for the massive use of fiduciary money (notes and coins), to formalize our economies which are essentially informal, and to encourage the use of means of payment, regulation is needed to give them more value and that users accept them.

The consequences are: loss of public confidence in both payment instruments; loss of confidence in the financial intermediation function performed by banks; misuse of fiduciary money (notes and coins) in everyday and commercial transactions.

It is in this context that the BCEAO has set up a commission responsible for developing the legal and organizational bases of the Central Payment Incidents Centre.

The check is a means of sight payment, an order to pay,

To this end, article 48 of regulation number 15/2002/CM/UEMOA relating to the payment system in the Member States of the Union, gives a certain number of compulsory information that the check must contain: The denomination of the check, inserted in the text itself, expressed in the language used for the drafting of this title; The pure and simple mandate to pay a fixed sum; The name of the person who must pay (draw); The indication of the place where the payment must be made; Indication of the date and place where the check is created; The handwritten signature of the person issuing the check (drawer).

What is a Check Payment Incident:

By check payment incident is meant the non-payment of any check. According to article 114 of regulation 15/2002/CM/UEMOA, 2 reasons trigger the unpaid procedure: lack of provision or insufficient provision.

According to article 114 of regulation number 15, the drawee banker who has refused payment of a check for lack of or insufficient funds must: first record the payment incident in the bank's books, issue a certificate of bearer rejection of the check specifying in the content the reason for the rejection(114); notify the account holder by written letter, at a cost if desired, that he has a period of 30 days to regularize this incident, but also the agents and co-holders of this warning addressed to the client with the consequences which (art114 al3) and inform the Bcéao of the warning by sending it a copy of the letter for information and, who must enter this warning in the payment incident file.

The bank issues a payment certificate to the drawer if: The account holder regularizes the incident and provides proof that it has taken steps to settle the amount of the unpaid check. The account holder must constitute sufficient funds on the account and allocate to the payment of the unpaid check by the drawee.

Penalties for non-payment

In the absence of regularization within the 30-day period, the banker issues a certificate of non-payment to the bearer of the check. And must also inform the customer that it is forbidden to issue checks over 5 years as the account holder and not an agent. The bank must then notify the BCEAO of the incident on the 4th working day following the expiry date of the deadline or on the second working day following the incident. This prohibition, although it only concerns the account holder, has effects with regard to the agent but only on this account. At the same time, the bank must enjoin the account holder (customer) to return to all the banks of which he is a customer, the check forms in possession and those of his agents. Bank ban and restitution order for all co-holders on all accounts unless they have designated a co-holder to be banned from banking on all his accounts. And in this case the other co-holders are only prohibited on the single account on which the incident was recorded. Similarly, if the account is closed, if the bank does not do so, it will be obliged to pay all the checks that will be issued later regardless of the balance of the account, which is very heavy for the bank and for the employee handling the incident.

When the warning letter has not been sent pursuant to Article 114 al2 of the regulation, the bank must notify the Bcéao no later than the 2nd working day following the recording of the incident. And the bank has a duty of care relating to the meaning of the banking prohibition to issue checks and the injunction to return the blank checks to the account holder.

The account holder recovers the right to issue checks when he proves that he has: Settled the amount of the unpaid check or made sufficient provision available for payment by the bank, paid the release penalties under the conditions set out in Articles 119 and 121. Thus, the bank issues a payment certificate at the customer's request and draws the lifting of the banking prohibition.

Abdoulaye Amara Toure

President AJBEF-MALI

Bank lawyer

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