Banking Instructions or a Promissory Note
If not as cash, then how is a check defined? The most simplistic definition would be to define a check as an “instruction to the bank.” According to this, a check has little meaning in terms of monetary law. Paying with a check is no more than giving the payee a signed instruction that will cause the bank to pay him money. Before the bank pays out the money, nothing significant—in a monetary sense—has happened.
This view is adopted by Harav Shlomo Karelitz in his Ateres Shlomo (Choshen Mishpat 85), and is also expressed in Shut Kinyan Torah (7:113) of Harav Hurwitz, and in Chut Shani of Harav Nissim Karelitz (Ribis p. 115).
However, many authorities have difficulty is viewing a check as nothing more than a banking instruction. In their opinion, a check should rather be viewed in light of its fiscal implications, as a promissory note—a statement of debt made by the drawer to the payee.
According to this view of a check, handing over a check to the payee actually creates a debt, which is paid when the money is transferred from the drawer’s account to the payee. A check is effectively a statement of debt, carrying with it all the halachic ramifications of a regular shtar chov.
How a Check Becomes a Shtar Chov
This last view, which sees a check as a full promissory note whose handing over creates a debt from drawer to payee, has been adopted by the majority of modern poskim. These include Harav Shlomo Zalman Auerbach (quoted in Toras Ribis, chap. 18, note 35), Harav Yitzchak Yaakov Weiss (Minchas Yitzchak 5:119; 6:170; 7:64, 131), and others (see Lehoros Natan 8:103, 104, 106; Teshuvos Vehanhagos 3:462). But how does this work? Why should a check be considered a full shtar chov?
Some explain the power of a check by reference to the principle of dina demalchusa, the law of the land, which gives a check the power to extract money from the drawer. On account of the legal power of the check, there is scope to consider it as a halachic shtar chov.
Others, in particular Pischei Choshen (Halvaah chap. 10, note 21) and Bris Yehudah (chap. 1, note 38), rely on the force of the custom (minhag). Because it is the common custom to see a check as a debtor’s note—a check is used to extract money from the drawer—it takes on the full status of a shtar chov with the power to create a debt (see Rema, Choshen Mishpat 129:5; Rivash 385).
A further suggestion, which has also been postulated by several authorities, is that the words “Pay the order of …” should be re-interpreted to include a monetary obligation, which is the underlying intention of the person giving the check. Harav Zalman Nechemyah Goldberg (Techumin, vol. 14, p. 228) has suggested this mechanism based on the principle of achrayus ta’us sofer—under certain circumstances we assume that a clause applies to an agreement between two parties even though the clause was omitted from the written contract (see, in this respect, Shaar Mishpat 117:1 and Divrei Chayim, Choshen Mishpat 12).
