Question
I have a Kollel in Israel. A few months ago, a local donor gave me a personal shekel check but he postdated it and in the interim he passed away. May I cash the check or do we say that since he passed away, he is no longer the owner of the assets that I will collect, and his heirs are not obligated to give me the money that he promised?
Answer
Since checks did not exist in the time of the Gemara and Rishonim there are no direct halachos that can give us an answer. In order to answer the question, we have to consider the legal rules that govern the status of checks and then consider how Torah law rules (which may be different from secular law) in situations that arise as a result of the use of checks. Since the legal rules are not universal and also change from time to time, our answer only applies to the rules that now govern the use of shekel checks written on an Israeli account.
There are two rules in the Israeli banking system that affect our answer. One rule is that it is illegal and legally ineffective to cancel a check. If one gives a check to a payee, he cannot prevent him from cashing the check. If one cancels his check, the payee can turn to the appropriate legal office that will (if cancellation was not justified) force the drawer of the check to pay the payee. A second rule is that a bank may not honor a check before the date written on the check.
Since one is unable to cancel a check there are two reasons why, in the context of Torah law, after writing and giving a check, the writer of the check is obligated to pay the payee the amount that is written on the check. One reason is that in Torah law it is possible for a person to create an obligation on himself. Most obligations are created automatically. For example, when one borrows money, by virtue of his having borrowed money, the borrower is obligated to repay his loan. Similarly, if one damages another person or his property, the one who damaged is liable because the Torah obligated him to pay for the damages.
Many Rishonim, including the Rambam whose opinion is ruled by the SA (CM 40, 1), maintain that a person can create an obligation upon himself by writing on a piece of paper, “I hereby obligate myself to pay ___ to ____.”
However, the text of a check is “Pay to ___,” which is a directive authorizing the bank to withdraw funds from the payer’s account and give them to the payee. This is not the same content given by the Rishonim for creating a self-obligation. Thus, it is not obvious that, in the context of Torah law, one who writes a check and gives it to someone creates an obligation on himself. Nevertheless, there are three approaches of the poskim why giving a check does indeed create an obligation.
One approach is that we do not need to find an analogy in Torah law. Based on the rule of dena demalchuso dena we adopt secular law since there is nothing in Torah law here that contravenes the secular law and the secular law is for the good of the country. The source for this approach is a responsum of the Chasam Sofer (CM 44) that if a law is for the good of the people, since most people are in favor of the law, according to all opinions of the Rishonim, the secular law becomes Torah law as well, even in Eretz Yisrael.
Since for many reasons it is beneficial to legalize the use of checks in the manner that was adopted by the banking system, that becomes Torah law as well. Therefore, since in Israel when one gives a check he obligates himself to pay under secular law, under Torah law he is also obligated to pay. Some of the gedolim who followed this approach are Rav Eliashev zatsal (Kovetz Teshuvos 1, 200), Rav Shlomo Zalman Auerbach (cited by Toras Ribbis 18, footnote 35), and Minchas Yitzchok (5, 119).
There are other approaches that rule that a check creates a direct obligation under Torah law even without making use of the rule of dena demalchuso dena. One such approach is that since the custom is that people who give a check obligate themselves to pay what they wrote, Torah law obligates the drawer to pay. This is based on the Gemara (BM 74A) that rules that since the custom was that when a shopkeeper made a mark on a barrel of wine to indicate that the barrel was sold, if a storekeeper made such a mark, the barrel is legally sold. Even though the Torah specifies other actions to make a sale legally effective, if the custom is for an action to legalize a sale, if the action was performed, the sale is legally effective under Torah law. While many (most notably the Ramo (res. 87) and Nesivos (201,1)) maintain that this method, which is known as setumto, is a rabbinic enactment, there are also many (most notably the Rashbo (commentary to BM 74A) and Chasam Sofer (res.CM 12, YD 314)) who maintain that this is a Biblical method of validation. In any case it is effective.
Similarly, many poskim including Rav Eliashev zatsal (Kovetz Teshuvos 1, 200 in brackets) and Pischei Choshen (Halvo’o chapter 10 footnote 21) maintain that since custom is also effective to create an obligation (Nesivos 201, 1) and others) and the custom is that when one gives over a check he obligates himself to pay what it says on the check, even in the context of Torah law, one who gives a check is obligated to pay.
One more approach (Dinei Ribbis Hametsuim page 164 cites Rav Moshe Sternbuch as ruling this way) is that even though what it says on the check is, literally, only an authorization for the bank to withdraw funds and give them to the payee, since the practical application of these words is to create an obligation, we view the check as having created an obligation.
All these opinions agree, and that is the consensus of modern-day poskim, that when one gives a check, even as a present, he creates an obligation upon himself and owes the money to the payee in the same manner as if he had borrowed the money from the payee.
Thus, we have established that the donor who gave you the check was obligated to pay you the amount that was written in the check had he been alive after the date that was written on the check. However, he passed away before that date so we must consider whether his heirs are responsible.
We note that, in contrast to the United States where postdating a check has no legal validity and the bank may cash the check before the date written on the check, in Israel the bank may not honor the check before the date written on the check. However, since no new obligation is created when the date written on the check is reached, it seems that the proper understanding is that a check is like a loan document before the date when the loan is due. Thus, the obligation to pay existed at the time of your donor’s death and you were merely prevented from utilizing the check prior to your donor’s death.
Since the donor owed you money at the time of his death, we have to consider whether his heirs, who now own all his assets, are obligated to pay his debt. The halachah (CM 107, 1) is that if one’s heirs inherit his assets, they must pay his debts from the inheritance that he left them. However, we will not obligate them to pay if there is a reasonable possibility (CB 108, 1) that the debt was already paid.
In your situation there are two reasons why one need not be concerned that the debt was paid. One reason is because the donor passed away before the date on the check. The SA rules that we do not have to be concerned about a loan that perhaps it was repaid before the due date of the loan. Similarly, we do not have to be concerned that perhaps the donor gave you money to cover his pledge before the date on the check.
Second, the law is that we do not have to suspect that a loan was repaid if the creditor has a loan document, because people don’t leave a loan document with the lender after they pay the loan back. So too people do not leave a check by the payee when they pay cash in lieu of the check.
Therefore, you may cash the check if the account has not been frozen. This is also the ruling of the Sefer Hacheck Behalocho (15, 14).
A second independent approach why you may cash the check is that even if a deceased had no obligation to pay some amount, if he set aside money prior to his death with the express purpose that that it should be given to someone, his heirs are obligated to fulfill his wishes. This obligation is called mitzvo lekayem divrei hameiss-it is a mitzva to carry out a deceased person’s wishes.
This is not just a mitzva. It grants the one who was supposed to get the money the right to seize assets in order to carry out the wishes of the deceased. If the heirs violated this law and used up all the assets that they inherited and left you nothing, then you would not be able to force them to pay you what the deceased said to give you out of their resources. However, if there are assets remaining in your donor’s account you may cash the check based on this rule.
It is often difficult to apply this approach because many Rishonim – and this is the ruling of the SA (CM 252, 2) – rule that this obligation applies only if the deceased set aside money expressly for this purpose. However, in your situation you can utilize this approach for two reasons. One is that some poskim (including Rav Eliashev who is cited below) maintain that by giving you a check it is considered as if the assets needed to cover the check were set aside for this purpose. The second reason is that many poskim rule that if one vows to give something then even though the money was not set formally aside for the recipient, we say that mitzvo lekayem divrei hameiss and they maintain that writing a check for tsedoko is considered as taking a vow (Shevet Halevi 7, 222). The source is the Magid Mishne (Mechiro 22, 15) and it is discussed by the Ketsos (252, 3). This was the ruling of the Achiezer (3, 34) and it is reliably reported (by a grandson of Rav Eliashev and printed in Mishpat Kehalocho page 585) that this was the ruling of Rav Eliashev who was asked to rule in a case exactly like yours and based on this reason ruled that the recipient may cash the check.
In conclusion: You are allowed to cash the check.
