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Shabbat Parashat Acharei Mot| 5771

P'ninat Mishpat: Accepting Open Checks Signed by Someone Now Deceased

(condensed from Shurat Hadin, vol. VII, pp. 87-92)

Case: The plaintiff (=pl) possesses checks worth a few hundred thousand dollars signed by a man who is now deceased, dated for certain dates after his death, with amounts that were filled in with a different handwriting. Pl explains that he had lent a large sum of money to the deceased and the checks were left open to adjust for interest. Pl demands that the deceased’s minor son (=def), who inherited his property, sell the property in order to pay.

 

Ruling: Should beit din hear the case, given the rule that we do not extract payment from orphans who are under bar mitzva unless testimony was accepted during the father’s lifetime and the time had not come to have paid (Shulchan Aruch, Choshen Mishpat 108:3)? A check is a clear sign that the obligation has not been paid, and writing one is a form of giving believability that this is the case. On the other hand, maybe this is like a will, which the Shulchan Aruch says needs to be confirmed in front of the inheritors, for which a minor does not count. Beit din can hear the case for two reasons: 1) Beit din appointed a guardian to represent def. 2) If the children gain if the debt is paid earlier or lose if it is delayed, a case can be held, and here beit din has reason to be afraid that pl will stalk def until the matter is resolved.

Authenticating the checks’ signatures can be done by comparing the signature to other checks the deceased signed. Here the matter is stronger since the signatures are found on checks possessed only by the deceased.

As opposed to a loan contract, which mentions that the sum of money is an obligation, a check can be for a present as well. A present given by check is not binding until the check is cashed, as a check is only an instruction to the bank to transfer money until told otherwise. While the deceased’s obligations can be paid from property he left to def, the promise of a present cannot. On the other hand, it would be illogical for the deceased to have given such a large gift to someone not closely connected to him. In fact, the sources that allow one to claim that something was done for free apply only when one explicitly makes such a claim or in regard to cases where the scenario makes sense.

Usually we look at a signature as admission of the one who signed that that which is written above is true. However, in this case, the deceased signed a check without a monetary sum. On the other hand, since banks accept such checks when they are filled in later, there is an element of admission that whatever the recipient writes is correct. [The sources on this matter are beyond our scope.] However, that is a more cogent claim during the deceased’s lifetime, but after his death, when no one can contradict pl if he fabricates a high sum, it is hard to convince us that deceased owed him so much money.

Beit din employed a compromise of paying $10,000 instead of the checks’ face values.

 

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