Shabbat Parashat Nitzavim 5781

P'ninat Mishpat: A Check Passing from Hand to Hand

Case: [The actual case included a few more people, whom we “removed” for simplicity’s sake.] While Mrs. L was claiming inheritance of land under government control, she sold future rights to the defendant (=def), who wrote her a check for 130,000 NIS. Mrs. L handed the check over to her ex-husband (=exh), who later gave the check to the plaintiff (=pl). Pl tried to cash the check but was refused due to insufficient funds and now is demanding payment from def. Def claims that the check had been given as a guarantee, with the stipulation that it must not be used for payment, and the deal to which it related did not come to fruition.   

Ruling: Poskim differ as to the halachic nature of a check. The most accepted opinion (including in the Eretz Hemdah-Gazit network) is that he who writes and gives a check creates an obligation on himself to pay. In order for this to be binding, it likely must work based on situmta (accepted convention) or dina d’malchuta (law of the land). Therefore, it is necessary to investigate this case in light of Israeli law. 

While most checks are written to pay for a commodity or a service, sometimes a check is given for other purposes, whether it be as a present or as a way to boost the recipient’s credit (check tova). In that case, the recipient does not have to prove that he provided something in return for the check. However, if there is a credible claim that the check was never meant to be cashed, then this would not be relevant.

In this case, in addition to def, Mrs. L and exh (who both acted immorally in this matter – beyond our present discussion) agree that it was not given to them to be cashed. Therefore, the change in the purpose of the check, from a guarantee to a check to cash, ruins the legal basis of its transfer. However, it is not impossible that Mrs. L and exh are involved in a scheme to defraud pl, and therefore we must investigate further.

According to Israeli law, a check is held properly when three conditions are met: 1. The check appears to be a validly prepared one; 2. The check-holder received it before its date of payment expired; 3. He received the check in good faith, assuming that it was intended to be fit for deposit.  Exh testified that he tried to cash the check on the last day it was valid, and when he was turned down, he gave it to pl to try. According to his description, pl received it late, when it was unusable. The check’s formulation was also problematic. Def made it out to “Myself,” in which case, it is transferable only if it was signed by her on the back. What is on the back is unclear, but it is not similar to her signature, and she denies signing it. Under these circumstances, it is hard to view it as receiving the check in good faith. Therefore, the check failed all the tests.

On the matter of receiving value corresponding to the check, pl could only identify less than 30,000 NIS that exh might be obligated to him, and this does not give a 150,000 NIS check justification. Therefore, on all grounds, pl may not act on the possession of the check and must act to have liens removed from def. 

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