Halachic validity of a check

Definition of a check in Halacha:[1]

There is a dispute amongst today’s Poskim as to the status of a check according to Halacha. Some Poskim[2] rule it is viewed as a mere promise document which has no Halachic validity.[3] It is similar to a note promising to pay someone money, and is not a document of debt. According to this opinion, a check cannot be sold to another. Other Poskim[4] rule a check is identical to a loan document for all Halachic purposes, and hence may be sold just like a loan.[5] Other Poskim[6] rule a check is similar to an oral loan that can be purchased through Mamad Shloshtan. Other Poskim[7] rule that a check is considered like actual cash payment, as under law the person must honor the check he signed. Practically, the majority of Poskim conclude that a check has the status of a loan document which can be sold.

Practical ramifications:

• Can one cancel a check?[8]
• If a check bounced, can one who received a check be Toveia in court the check writer?[9]
• Can one sell a check to another? Does doing so involve Ribis if one receives less money than the check’s worth?[10]
• Can a check acquire an item through Kinyan Kesef?[11] Can one use a check to purchase Mitzvah items, such as Tzitzis, Tefillin, Daled Minim, a Kiddushin ring?[12]

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[1] See Mishpitei Ribis p. 342

[2] Ateres Shlomo 1/65 of Rav Shlomo Garelitz; Chut Shani Ribis 16/115 of Rav Garelitz; Vayaan David 2/219; Rav Z.N. Goldberg in Techumin 12/295 leaves this issue in doubt; Kinyan Torah 3/93

[3] The reason: As a check is a mere directive to the bank to pay someone a certain amount of money and mentions no debt to a third party. It is similar to note promising to pay someone money, and is not a document of a debt.

[4] Minchas Yitzchak 5/120; Igros Moshe C.M. 2/15; Lehoros Nasan 8/106; Ohola Shel Torah 1/84

[5] The reason: Various Halachic considerations can render a check as a valid loan document:

1. Mamarani: The Poskim rule that a Shetar Mamarani [I owe you document] is a valid document and has the same status as a loan. [See Shut Bach 15; Tzemach Tzedek 10]
2. Dina Demalchusa Dina: Since according to law the check writer must honor his check, therefore it is considered like a loan document, as Halacha accepts the laws of the country regarding monetary matters. [Rama C.M. 369/11; Chasam Sofer 5 C.M. 44; Rashba 22]
3. Situmta: Since using a check is an accepted way of business, it receives the Halachic status of a “Situmta”, which is considered a Halachically binding Kinyan. [See Choshen Mishpat 129/5 and Keses Kodshim on 201/1]
4. Umdana: When one can assess the intents of a transaction to be of a certain form, it has Halachic status of Umdana, which is Halachically binding. [See Rav Z.N. Goldberg in Techumin 35/346]

[6] Rav Aba Shaul, brought in Mishpitei Ribis ibid

[7] See Mishpitei Ribis ibid; Pischeiy Choshen Halvaa 10 footnote 21; See Shevet Halevi 7/222

[8] According to the first approach that a check is not a loan document, a check can be canceled, just as one can cancel his instructions to his emissary to deliver payment to another. However, according to the other views that see a check as a loan document, according to some opinions, the check writer no longer has the Halachic ability to cancel the check. [Shach 39/49 in name of Ramban and Riy Migash, unlike Michaber C.M. 39/17]

[9] According to the first approach that a check is not a loan document, a check can be canceled, just as one can cancel his instructions to his emissary to deliver payment to another, and the receiver of the check can have no monetary claim against the check in court, and hence cannot force a court ordered payment [unless he received goods or services in exchange for the money]. However, according to the other views that see a check as a loan document, or as cash, the check receiver may have a court mandate the payment of the check.

[10] If a check is a loan document, it is permitted to be sold for less than its worth if one removes any liability. If it is viewed as a mere promissory note, it cannot be sold to another and hence one may never exchange a check for less than its value, even if the seller does not have liability on the check. [See Admur Ribis 57; See Bris Pinchas 17/9-11]

[11] If a check is viewed as cash, it has ability to Biblically acquire an item with Kinyan Kesef. If it is viewed as a mere promissory note, or loan contract, it cannot acquire an item through Kinyan Kesef.

[12] See Machaneh Ephraim Kinyan 3 and Biur Halacha 11/6 “Mitzemer” who write that the meticulous are careful to pay for a Mitzvah item at the time of purchase using cash and not credit. Accordingly, a check would be invalid for use as a Kinyan to purchase Mitzvah items that one must own. Many Poskim however rule this is not necessary. [Shoel Umeishiv Reviah 3/29; Sdei Chemed Lamed 141/24; Poskim in Piskeiy Teshuvos 11/19 footnote 132] The Chabad custom is not to be careful in this matter[12], [Sefer Haminhagim p. 139 [English] regarding the four species] and so is the worldly custom. [Sdei Chemed ibid]