(2) If execution of a payment order by a receiving bank in breach of ORS 74A.3020 results in noncompletion of the funds transfer, failure to use an intermediary bank designated by the originator or issuance of a payment order that does not comply with the terms of the payment order of the originator, the bank is liable to the originator for the expenses of the originator in the funds transfer and for incidental expenses and interest losses, to the extent not covered by subsection (1) of this section, resulting from the improper execution. Except as provided in subsection (3) of this section, additional damages are not recoverable.

(3) In addition to the amounts payable under subsections (1) and (2) of this section, damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank.

(4) If a receiving bank fails to execute a payment order it was obliged by express agreement to execute, the receiving bank is liable to the sender for the expenses of the sender in the transaction and for incidental expenses and interest losses resulting from the failure to execute. Additional damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank, but are not otherwise recoverable.

(5) The court may award reasonable attorney fees to the prevailing party in an action to recover amounts under this section.

(6) Except as stated in this section, the liability of a receiving bank under subsections (1) and (2) of this section may not be varied by agreement. [1991 c.442 §25; 1995 c.618 §44]