Shabbat Parashat Beshalach 5778

P'ninat Mishpat: Replacing a Lost Check

Case: The plaintiff (=pl) sold his house. The final payment consisted of four checks, including a transferable one for 21,000 shekels that the buyer had received from the defendant (=def), a construction-related company. Pl lost the checks, reported it to the police, and called all those who wrote the checks to tell them to cancel them. Def does not accuse pl of lying, and the check was not cashed in the bank. However, sometimes def pays cash to those who hold their checks, and it is therefore possible that they already gave money to someone who presented the check. (There was disagreement as to whether def found out the check was lost within a day or more than a week after it was lost.) Therefore, even though pl is willing to provide guarantees in case someone who finds the check will cash it, def still does not want to pay pl the 21,000 shekels.       

Ruling: There is a machloket among poskim whether a check is just an instruction to the bank to give money on the check-owner’s behalf or whether it is his self-obligation to pay money to the check holder. We agree with the consensus that the latter is correct, and in the case of a transferable check, he obligates himself to whoever legally possesses it. According to the Law of Documents, the recipient of the check must have received it in good faith and in return for something of value, a fact to which the buyer has attested without being questioned by def. According to the law, to which we assume the check writer intended to be held to, even if pl does not presently have the check in his possession, the obligation continues.

According to Halacha, there is a mitzva to return a lost check to the person who gives signs that it was in his possession, just like for any other object (what constitutes a sign can depend on the circumstances). The intended recipient of the check can be expected to know how much money will be written even if the time did not come to hand it over to him, so that information is not proof. However, if the person to whom a check is transferred by its recipient knows what is written in it, this should be a sign he received it. In our case, pl was specific enough in his knowledge of the check’s particulars to convince us that the check had been in his possession.

Usually, when a defendant is unsure whether he returned money that he was once obligated to pay, he must pay (Shulchan Aruch, Choshen Mishpat 75:9). However, if there was a document for a loan and it was lost, we have reason to suspect the loan is no longer intact (ibid. 65:6). However, in our case, there is no reason to suspect that there is a problem with the obligation. It must have taken place in the first place or def would not know its details, and if it were paid, we expect regarding a modern check that the debtor would have ripped it up if he paid in cash or the bank would have stamped it if it were redeemed through them (see Hashek Bahalacha 10:8:(223).

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