The Cheque Bounced- Who Pays the Bank Charges?

Question

Shalom deposited a cheque he had received from Micky in his bank account. A few
days later, he received a letter from the bank that the cheque had bounced. Not only would
Shalom’s account be debited with the amount of the cheque, but he would also have to
pay charges for the failed transaction. Shalom goes to Micky, who gives him a new cheque
but refuses to reimburse the bank charges. "That’s between you and your
bank," he argues. Does Shalom have a claim on Micky for these charges?


Answer

The Remo writes in Choshen Mishpot (14:5): Reuven told Shimon that their
dispute would be adjudicated by a Beis Din in a distant town. He instructed Shimon to
proceed to this town and said that he would follow in due course. Reuven never turned up.
The law is that Reuven has to reimburse Shimon for all his wasted expenses in travelling
to this distant town.
The reason for this ruling is that Shimon spent money since he
relied on Reuven’s word. Even though no formal agreement had been made between the
two, the law of "deena d’garmi" applies. A classic illustration of
this concept would be if a person burned another person’s document (for example, a
U.S. Government bond). The offender could argue that he has only destroyed a piece of
paper of minimal worth. However, the owner of this document is now unable to collect what
is due to him since this piece of paper has been destroyed. "Deena d’garmi"
dictates that the offender has to pay the full collection value of this document,
even though he did not cause this amount of direct damage. There is a difference of
opinion as to whether this is a full Torah or Rabbinic law or just a fine imposed by the
Rabbis to prevent such behaviour. The majority opinion is that it is only a fine (see
Shach to Choshen Mishpot 386, Note 1). It therefore follows that if the damage was
inflicted unintentionally, there is no liability. The Rabbis were out to prevent people
from actively causing damage with the intention of getting away with it!

Let us apply the above principles to our case. If Reuven gives a cheque to Shimon, he
is in effect saying to him that this is a valid cheque. Shimon can deposit it in his bank
account on the date written on the cheque (or soon afterwards) and expect his account to
be credited with the amount written on the cheque, without problems. If the cheque
bounces, Reuven is held responsible since he is considered to have told Shimon to deposit
a valid cheque. Once again, the reason is "deena d’garmi". However,
we mentioned above that this principle only applies if such damage was caused
intentionally. If Reuven knows that there is no cover for his cheque, he is held
responsible (unless the mistake is obvious to all). Sometimes a person writes out a cheque
for a later date, relying on the fact that money is meant to be paid into his account
before payment of the cheque is due. Unfortunately, the expected funds do not arrive on
time and the cheque bounces. In this case, the issuer of the cheque is still held
responsible. He should have checked in his account. (This can be compared to one who hired
workers to water his fields without first checking whether such work was necessary – Bovo
Metzia
77a). All these circumstances are considered intentionally causing damage. On
the other hand, if non-payment resulted from the recipient depositing the cheque too early
or too late, or writing the wrong-date, he has no claim for reimbursement since he himself
caused the damage.

THEREFORE, Micky must refund the bank charges to Shalom, as well as giving
a new cheque, unless Shalom can be shown to have caused the cheque to bounce.
THEREFORE, Micky must refund the bank charges to Shalom, as well as giving
a new cheque, unless Shalom can be shown to have caused the cheque to bounce.