united-states consumer-protection tort negligence duty-of-care
Does a duty of care arise from advertised functionality?
<p>Credit card issuer advertises &quot;account alerts&quot; on its website and in other communications, e.g., to &quot;receive a reminder when your payment is due&quot;. Customer sets up alerts, and relies on them to know when to make a payment. Bank fails to send them, resulting in late payments and credit damage.</p>
<p>Is the issuer liable?</p>
<p>Common law negligence and negligent misrepresentation causes of action typically involve a &quot;duty of care&quot;. Does a duty of care arise under these circumstances, i.e., from the fact that the issuer advertised the feature?</p>
<p>The cardmember agreement does not reference account alerts at all. @Rock Ape kindly points out that a supplementary agreement may. One does (pertinent parts below). Three parts stick out:</p>
<ol>
<li>No express promise is made that messages will be sent at all, only that the agreement &quot;includes access&quot; to &quot;Alerts&quot;. However, one could argue that it is implied.</li>
<li>It contains a sentence limiting liability from &quot;any disclosure of account information to third parties, <em>non-delivery</em>, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the messages sent&quot;. Based on the context, my interpretation is that the limitation is for third-party conduct (e.g. customer's e-mail provider fails to deliver alert).</li>
<li>Alerts are &quot;provided for your convenience and do not replace your monthly account statement(s), which are the official record of your accounts&quot;. One interpretation, which seems inconsistent with the extrinsic advertisements on the website, is that the Alerts come with no guarantees at all. Another interpretation is that billing statements continue to be necessary for certain account information, e.g. transactions.</li>
</ol>
<hr />
<blockquote>
<p>Your enrollment in the Online Service includes access to [...] Alerts.
By receiving or otherwise using these services, you agree to the
following terms for these services. You agree that we may send
messages through your communication service provider in order to
deliver them to you and that your communication services provider is
acting as your agent in this capacity. [...] Additionally, you agree
to indemnify, defend and hold us harmless from and against any and all
claims, losses, liability, cost and expenses (including reasonable
attorneys' fees) arising from your provision of a phone number, e-mail
address, or other delivery location that is not your own or your
violation of applicable federal, state or local law, regulation or
ordinance. Your obligation under this paragraph shall survive
termination of the Agreement. The Alerts and Text Services are
provided for your convenience and do not replace your monthly account
statement(s), which are the official record of your accounts. [...]
You understand and agree these services may not be encrypted and may
include personal or confidential information about you such as your
account activity or the status of your account. You also understand
that there may be a disruption in service when you change your
communications service provider. Messages may be delayed or impacted
by factor(s) pertaining to your Internet service provider(s), phone
carriers, or other parties. We will not be liable for losses or
damages arising from any disclosure of account information to third
parties, non-delivery, delayed delivery, misdirected delivery or
mishandling of, or inaccurate content in, the messages sent through
the Alerts and Text Services.</p>
</blockquote>

<p>Jurisdiction: <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a>.</p>
<p>You don't necessarily need to turn to tort law to find a duty of care. For example, assuming the customer is a consumer (i.e. not operating as part of their business) then the following sections of the <a href="https://www.legislation.gov.uk/ukpga/2015/15/contents" rel="noreferrer">Consumer Rights Act 2015</a> are relevant:</p>
<blockquote>
<p>49 (1) Every contract to supply a service is to be treated as
including a term that the trader must perform the service with
reasonable care and skill.</p>
<p>50 (1) Every contract to supply a service is to be treated as including
as a term of the contract anything that is said or written to the
consumer, by or on behalf of the trader, about the trader or the
service, if —</p>
<p>(a) it is taken into account by the consumer when deciding to enter
into the contract, or</p>
<p>(b) it is taken into account by the consumer when making any decision
about the service after entering into the contract.</p>
<p>57 (1) A term of a contract to supply services is not binding on the
consumer to the extent that it would exclude the trader's liability
arising under section 49 (service to be performed with reasonable care
and skill).</p>
<p>57 (2) Subject to section 50(2), a term of a contract to supply
services is not binding on the consumer to the extent that it would
exclude the trader's liability arising under section 50 (information
about trader or service to be binding).</p>
</blockquote>

<p><strong>Is the issuer liable?</strong></p>
<p>Notwithstanding @JBently's detailed answer, it may depend on the terms and conditions the consumer agreed to when setting up the alert service - which may be additional or supplementary to the original card holder's agreement.</p>
<p>Using a <a href="https://www.nationwide.co.uk/ways-to-bank/terms/text-alert-terms-and-conditions/" rel="noreferrer">random UK bank</a>'s alerts' T&amp;Cs as an example:</p>
<blockquote>
<p>We will not be liable to you if we do withdraw this service or if for any reason you do not receive a Text Alert.</p>
</blockquote>
<p>I cannot find any case law where the fairness of this has been challenged; successfully or otherwise.</p>
