A person purchased an item from his friend, and paid him with a check.
Four months later he was going through his checkbook and realized that
the seller had never cashed the check, despite the fact that there were
enough funds in the checking account to do so.
Does the buyer have to inform the seller that the check never cleared?
If the seller would have contacted the buyer and requested a new check
because the previous check had been lost or destroyed, would the buyer be
obligated to provide the seller with a new check?
What is the Halacha?
If a person paid for an item with a check, and after a considerable
amount of time he realizes that the check has not cleared - the buyer has
no obligation to inquire from the seller why the check has not been
cashed. This is true even though he is using the item in the interim and
it has not been paid for.
If the seller would approach the buyer and ask him to _exchange_ the
old check for a new one (either because the old check was more than six
months old and the bank would no longer accept it, or because it had gone
through the wash and was no longer usable), the buyer would be obligated
to do so. However, he may deduct any expense incurred in having to write
a new check. This obligation applies even if the seller had negligently
caused that the check not be usable.
However, if the seller approaches the buyer and requests a new check
because he had lost the previous check, the buyer has no obligation to
provide the seller with a new check. See below.
There is an important difference between a cash payment and a check
payment. When a customer purchases something with cash, there is an
immediate transfer of funds from his domain to the seller. However, a
check is merely an instruction to the bank to issue funds to whomever the
check is made out to. (Pay to the order of...) Until this is done, it
can not be considered as if a payment has been made.
Therefore, if something was purchased with a check, and for some reason
the check was not cashed, the buyer is using something that he has not
paid for. Although this may be entirely the fault of the seller, e.g. he
left it in a pocket and it went through the wash, or he waited too long
and the bank is no longer willing to accept it, this does not change the
fact that the buyer is using merchandise that has still not been paid
for. The seller clearly had no intention to relinquish his ownership of
the item if he was not going to receive payment for it. Therefore, if the
seller would request that the buyer accept the invalid check back in
exchange for a valid one or cash, the seller must do so.
However, if the seller claims that the check was lost or destroyed and he
is unable to exchange the original check with the buyer, the buyer has no
obligation to issue another check. There are two primary reasons for
He has no obligation to believe that what the seller is saying is
true, unless the seller is able to prove that the check was lost.
Even if he would believe the seller, the buyer is putting himself at
risk by issuing another check. If someone unscrupulous would find the
original check, he could end up paying twice. Even though he could put a
stop on the check, the buyer could argue that perhaps someone could alter
it, or bypass the stop in some way, and he simply does not want to expose
himself to such a risk. Although the seller clearly wants to be paid, the
fact that he accepts checks and doesn't demand cash payments indicates
that he is willing to accept the possibility that something may happen
and the buyer may not want to put himself at risk. (As opposed to
exchanging the check where there is no risk at all to the buyer).
This Halacha is stated in the Pischei Teshuva (Choshen Mishpat 54:1) and
in the Nesivos Mishpat in his Biurim at the end of Siman 50. The Nesivos
adds that in our case, even if the seller would obligate himself to
reimburse the buyer for any loss that he may incur by issuing a new
check, the buyer has no obligation to issue a new one.
It would be proper, however, for the buyer to go Lifnim MiShuras HaDin
(beyond the letter of the Halacha) and issue a new check if he is given
guarantees that he will incur no loss by doing so.
There is an additional point that should be taken into consideration.
Although we can not say that the merchandise has been paid for until the
seller cashes the check, it is possible that the seller may have endorsed
the check and given it to a third party who lost it. If the seller
received merchandise or payment from the third party, this would be
considered as if the seller had received payment from the buyer, and the
third party would have to take the loss. In this case, the buyer has
every right to use the items purchased, and has no further obligation to
either the buyer or the seller. This is why the buyer has no obligation
to approach the seller if he sees that the check has not been cashed.
Since it is possible that the check had been lost by a third party, the
buyer has every right to assume that he has paid in full for his
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!