Summary of the question from last week
You received your friend’s unfilled-out personal checks as security to ensure that the funds you gave to your friend to invest on your behalf were actually invested and it turned out that they were not invested and you asked if you may cash the checks.
Answer
We saw in the previous article that the reason there is an issue whether a guarantor can become legally obligated to repay someone else’s loan is that the obligation is only conditional. Since the obligation is only conditional the guarantor does not have a full mental commitment to actually pay which normally is necessary in order to create an obligation. This condition is known as asmachta.
We saw further that the reason that one who guarantees a loan actually becomes obligated to pay the loan if the borrower fails to pay is because either (the opinion of the Ritva) the guarantor received a recommendation as a reliable person or, because (Tosafos) we view the loan as if the money was transferred to the guarantor and it is he who then lent the money to the borrower. Since neither of these applies if one agrees to guarantee only after the lender transferred the funds to the borrower, we must find an alternative method to overcome the issue of asmachta and to obligate the guarantor to pay in case the borrower fails to pay.
We saw further that if he makes a kinyan of suddar it certainly obligates the guarantor to repay. We also saw that the effectiveness of a shtar written by the guarantor is a dispute among the Rishonim. We were left with a question of whether the guarantor’s giving his personal check suffices to create an obligation on him.
One reason a personal check obligates the guarantor to pay, according to many poskim (Maharsham 7, 136: Tsemach Tzeddek CM20), is that giving a check creates an unconditional obligation upon the guarantor to repay the loan as if he himself received the funds, since the check does not indicate that the check writer is a guarantor on someone else’s loan. This approach is contingent upon the opinion that a check is a shtar that creates an halachic obligation upon the signer of the check.
This approach is controversial among modern-day poskim who discuss the halachic status of checks. The reason this is an issue is because the words that are written on the check are: “pay to ____” which literally mean that the signer is directing his bank to pay the amount written on the check to the payee. Rav Nissim Karelitz was of the opinion that a check does not create an obligation since it is just a letter to the bank, and his opinion is still followed by his beis din.
However, the vast majority of poskim, including Rav Moshe Feinstein, Rav Eliashev, Rav Shlomo Zalman and the Minchas Yitzchok (all these opinions and many others are cited in Hacheck Behalocho 1, footnote 14) maintain that giving a check not only serves as immediate payment but also can serve, if necessary, to create an obligation on the one who wrote the check to pay the funds. For example, if one gives a check to a bar mitzvah boy as a present and the check bounces, the writer of the check owes the amount written on the check to the bar mitzvah boy since he committed himself to pay what he wrote on the check.
These poskim cite various reasons for their ruling. One reason (Minchas Yitzchok (5, 119) and Rav Eliashev in Kovetz Teshuvos (1, 200)) is that since the law views a check as creating legal liability we invoke the rule of dina demalchuso to create an halachic liability.
Other poskim (Rav Eliashev ibid, Pischei Choshen) base their reasoning upon custom. The Gemara (Bava Metsiyo 71) states that if it is customary for an action to effect a change of ownership then it is valid halachically as well. Since the custom is to view giving a check as a creating liability, it does so according to Jewish law as well.
Since the vast majority of poskim view a check as creating liability, many (See Hacheck Behalocho 1, 16) maintain that we don’t have to even consider the minority opinion, so that, for example, one can not say kim li (I hold) like their opinion.
However, even though one can generally rely upon the opinion that a check creates liability, it is difficult to rely on the opinion that one who obligates himself personally to pay up a debt without writing that he is only committing himself conditionally becomes obligated as a guarantor even after the funds were transferred to the borrower (considering the checks as a shtar without considering their unique status as checks). The reason is that many poskim (Ramo res 72, Chavos Yo’ir 137, Shevus Ya’acov 3, 145) maintain that even when one obligates himself to pay without mentioning that he is doing so as a guarantor, it is no better than a shtar which says that he is a guarantor and therefore it will only be valid according to those who maintain that a shtar obligates a guarantor even after the money was lent. However, as we saw in the previous article, the Rambam maintains that a shtar is cannot do this and one cannot force someone to pay if this opinion maintains that he is not obligated to do so.
The reason to maintain that in this case you may cash the checks is that checks given by a guarantor are better than a simple piece of paper written by the guarantor (shtar) stating that he personally owes the funds that are owed by the borrower. The reason is that checks are legally valid which creates two reasons to cause the commitment to be effective: custom and law.
When the guarantor gave you checks you can legally go and cash those checks. The only factor which prevents you from cashing the checks is that perhaps Torah law does not allow you to cash them since the writer of the checks was only a guarantor and perhaps his commitment to pay never took effect because it is an asmachta and you are bound by Torah law.
However, there are many poskim who maintain that when one makes a commitment which customarily is considered unconditionally binding, then he has all the commitment that is necessary to create liability even if it was intended as only conditional. The reason is because custom is legally binding under Torah law – an action which is known as setumta. This opinion was advanced by the Chasam Sofer (CM 66, cited by Pischei Teshuvo 201, 2) and was agreed to by many poskim (Beis Efraim CM34, Maharash Engel (1, 12) and Aruch Hashulchan (201, 3) among others.
Furthermore, since the checks are legally valid, there are poskim (Maharshag 3, 98) who maintain that since, if this case ever came to secular court you could justify cashing the checks since the writer of the checks had sufficient commitment to pay them, therefore there is no issue of asmachta. This is especially true in your situation where the payee was left blank in the checks you received since you could have given them to a gentile who would have no problem cashing them since he need not be concerned with Torah law.
It should be noted that the opinion of the Chasam Sofer was the basis for a ruling by the Chief Rabbinate in a case which was heard by a panel of judges that included the leading poskim, Rav Ezra Hadaya (Yaskil Avdi 7, Hashmotos CM3) and Rav Eliashev (Kovetz Teshuvos 1, 209) and is the practice that is followed by the Rabbinic courts in Israel (See Hacheck Behalocho 15, footnote 221)
In conclusion: You may cash all the checks you received from your friend, even those which were given to cover the money you gave over prior to your receipt of the checks, since they were given by the guarantor in case the money was not invested, which in fact was the case.
