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Shabbat Parashat R'ei 5779

P'ninat Mishpat: Canceling Checks Found by a Third Party

(based on ruling 71003 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) was given three checks for a total of 37,000 shekels, written from the account of the defendant (=def), by means of a third party (=tp). Def gave them as payment to tp for materials purchased for his business, and tp gave it to pl for services expected. Tp claims that pl did not do what he had promised and therefore asked def to cancel the checks and pay tp in a different manner, which def did. Now pl demands that def allow the cashing of the checks. Pl claims that he warned def not to cancel the checks, a claim that def denies.

 

Ruling: The question of whether def was allowed to cancel checks is linked to the question of how to view a check (especially an open one), a topic discussed by many contemporary poskim and dayanim. The Shevet Halevi (VII:222) views a check just as instructions to the bank to pay the check holder. As such, until it is redeemed, the account owner can cancel the check, and this would work even if it caused loss to a third party.

Rav Z.N. Goldberg (Techumin XII, p. 295-6) was uncertain whether the writing/giving of the check includes a self-obligation to ensure the recipient receives the money. Logic and experience dictate that it does. Although the check does not contain language of self-obligation, there is an umdana (a presumption based on understanding the situation) that, when writing a check, one is obligating himself to pay. This has precedent. The Rambam (Ishut 16:7-9) says that when there is a takana to expand the ability to collect a ketuba and it is known to the groom, we can assume that he had it in mind even though it is not mentioned in the ketuba. One could argue that that is different because most people explicitly accept the extension of the ketuba, whereas here people do not explicitly obligate themselves with a check.

However, there is a known construct to which a check fits, called a mamrani ­– a document used at the time of the Rishonim through which one would be obligated to whomever ended up with the mamrani. This was assumed to work even without writing a document to transfer a debt note (as Halacha requires by a regular document of obligation). There are different explanations as to how this could work, including based on situmta (societal acceptance). It is very accepted in our days that when one writes and gives a check, he knows that he is not allowed to cancel it, and the Minchat Yitzchak (V:119) says that this has become a binding custom based on the law of the land. The Pitchei Choshen says that this is true even though technically a person can cancel the check (he can be taken to court and forced to pay unless he can demonstrate foul play on the other side). This is even more so in a case like this, that def left the place of the recipient’s name open (see Even Yisrael VIII:91), as it really gives the check a status of a mamrani.

Therefore, def was not allowed to cancel the checks, and he must honor them and pay expenses.     

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