What happens when you have an argument about a banking transaction? Ideally, you want to know exactly where you stand. You invoke Google and you discover that the Irish Government has put every piece of Irish legislation ever enacted by the Dáil online. They have also added every statutory instrument including ministerial orders. So you begin to think that you are home and dry – it’s just a matter of a little further searching to find the relevant clause, copy it to the other party, and he will concede immediately.

Unfortunately, the reality is not a bit like that. In fact, it is a complete maze. Most of the law relating to banking is not passed by the Dáil. Much of the law relating to commerce, banking and more specifically payments, cannot be found in legislation. You need to be able to understand the legal system.

The legal system in Ireland was inherited from Britain and is based upon:
- The Irish Constitution of 1937 and subsequent amendments
- Legislation of the Irish parliament (“The Dáil”), enacted after 1922, including statutory instruments issued by ministers empowered under legislation
- Legislation of the British government prior to that date
- Precedents arising from court decisions
- Law arising purely from the common law with no express authority. This latter category includes significant elements of contract law and the law of torts, and consequently has great significance in relation to payments and to payment systems

The Irish legal system is normally classified as a common law system, similar to the setup in Britain. Since Britain has not adopted the euro, Ireland is the only Eurozone country which has a common legal system. In contrast, all Eurozone countries operate on variants of civil law. Civil law tends to give lesser significance to precedents created by judicial decisions.

There is no specific legislation in relation to much of contract law and the law of torts. Moreover, there is no specific legislation in relation to modern payment systems, schemes and instruments, i.e. cards, direct debits, electronic payments, etc. Where legislation does exist, e.g. in relation to cheques, the legislation merely specifies general principles.

There are subtleties in the relevant laws and in their implementation. For example, there is a difference between a system and a scheme for purposes of regulation. The infrastructure for cheques is a system. The infrastructure for credit cards is not a system, it is a scheme. The infrastructure of direct debits is a scheme riding on a system of electronic payments.

Since the legislation allows very wide latitude in the creation and maintenance of a contractual relationship, the terms and conditions agreed between a banker and customer assume a high level of significance. In practice, in almost every circumstance, terms and conditions are drafted by the bank and the bank will seldom accept a modification, particularly for a personal customer. The terms must be clear and must not be “unfair”, and the charges applied must be within the authorised charges for that particular bank.

The Payment Services Directive, passed by the European Parliament in 2007, is intended to standardise some of the legislation and is to be copied with minimal modification into the legislative systems of all EU member countries, whether operating on common law or civil law systems. It is likely to be inserted into Irish law in 2009. It will be interesting to watch how it is applied in both jurisdictions.

The Payment Services Directive is based upon principles and some of them will directly standardise the minimum rights of a bank customer. However, the directive is far from being comprehensive and the reality is that it will supplement rather than replace Irish law.

Meanwhile getting back to your original Google search, the following are the main pieces of legislation, including pre-1922 and post-1922 legislation.

Our advice, however, is that on matters of childishness you should talk to children, on matters of adultery you should talk to adults, and on matters of law – well - you are in difficult territory.