§ 4103. Variation by agreement; measure of damages; action

constituting ordinary care.

(a) Variation by agreement.--The effect of the provisions of this division may be varied by agreement, but the parties to the agreement cannot disclaim the responsibility of a bank for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the responsibility of the bank is to be measured if those standards are not manifestly unreasonable.

(b) Rules and regulations having effect of agreements.-- Federal Reserve regulations and operating circulars, clearinghouse rules and the like have the effect of agreements under subsection (a), whether or not specifically assented to by all parties interested in items handled.

(c) Certain action constituting ordinary care.--Action or nonaction approved by this division or pursuant to Federal Reserve regulations or operating circulars is the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearinghouse rules and the like or with a general banking usage not disapproved by this division, is prima facie the exercise of ordinary care.

(d) Effect of approval of certain procedures by this division.--The specification or approval of certain procedures by this division is not disapproval of other procedures that may be reasonable under the circumstances.

(e) Measure of damages for failure to exercise ordinary care.--The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care. If there is also bad faith it includes any other damages the party suffered as a proximate consequence. (July 9, 1992, P.L.507, No.97, eff. one year)