Cancelling a cheq to stop payment (intentionally breech contract) is Fraud!

unholyangel

Cancelling cheques

You can ask your bank or building society to stop a cheque, that is, refuse to pay out against a cheque you've written.

It's not against the law to stop a cheque. However, it is a criminal offence to hand over a cheque with the intention of stopping it later, although this can be difficult to prove. If you hand over a cheque knowing that the bank or building society won't pay the amount, that is, it will bounce the cheque, this is also a criminal offence.

http://www.adviceguide.org.uk/england/debt_e/debt_banking_e/cheques.htm#cancelling_cheques


Enough said I think.

neilmcl

JethroUK wrote: »

cancelling a cheq because its lost or stolen is not fraudulent

cancelling a cheq because you dont intend to honour payment (even if your sink is still leaking) is fraud

the intent to defraud defines it

No, ISSUING a cheque for goods/services that you have no intention to honour is fraudulent.

zzzLazyDaisy

JethroUK wrote: »

cancelling a cheq because its lost or stolen is not fraudulent

cancelling a cheq because you dont intend to honour payment (even if your sink is still leaking) is fraud

the intent to defraud defines it

Okay, I am going to put this as simply as possible, then I am out.

If someone pays you a cheque which bounces, the appropriate action is to sue in the country court (small claims if the cheque is less than £5000).

The ONLY evidence that the court needs to see is a copy of the dishonoured cheque, and confirmation from the recipient that he presented the cheque to the bank and did not receive the money. No evidence is heard as to the writer's state of mind, intention, motives, reasons, or anything else - that is why the hearing is known as a summary judgement. There is no consideration at all as to whether the actions of the writer are fraudulent or otherwise, and a judgement in the case can never amount to a decision that the writer is guilty of a criminal offence of fraud, since this is a civil case.

The police would not be interested in a bounced cheque and they would not pursue this as a criminal offence of fraud. They would say that it is a civil matter.

The only time the police might be interested is if an individual goes on a spending spree with a cheque book and leaves behind a trail of bounced cheques. In that case there would be a pattern that would be likely to support an allegation of premeditation, and the police *might* be willing to pursue a case of fraud against the person (though even then, there is no guarantee that they won't still say that it is a civil matter).

Okay, I have better things to do.

I'm out!

arcon5

youngsolicitor wrote: »

I suggest you go back and read your post. That is not what you said. I said "Cancelling a cheque isn't fraud ...". In response to that you said "It can be, it depends ...".

Let's be clear. The act of cancelling a cheque is not fraud. This is true regardless of anything that happened earlier. The intent of the parties when the contract was entered into does not matter. This remains true regardless of anything that happened earlier.

When you say "it depends" you are misleading people into thinking that they might be done for fraud for bouncing a cheque where, for example, they are not satisfied with the work (of course there could be a civil claim for breach of contract or under the Bills of Exchange Act, but this is completely different to being accused of fraud).

What is fraud is entering into a contract with the intent of bouncing the cheque from the very beginning. The fraud is constituted by entering into the contract. the cancellation has nothing to do with it: when we are talking about fraud, it does not matter whether you go ahead and cancel the cheque or not.

What????!

shocky_2

zzzLazyDaisy wrote: »

I am not sure if I understand you? I don't know what you mean by 'parallel claims'.

Even if one party commenced proceedings for the dishonoured cheque, and the other for breach of contract, the two claims would be independent claims and heard separately, since they turn on different points of law and factual evidence.

There is (normally) no defence to a claim on a dishonoured cheque. On the other hand it is easy to raise a holding defence to a breach of contract claim, sufficient to ensure that evidence of fact must be heard, and therefore the case would not be suitable for summary judgement. So the likelihood is that the BofC case would take considerably longer to process through the courts.

In the meantime, the merchant will have quickly obtained his CCJ and commenced enforcement proceedings - which he is entitled to do, since his claim is completely independent (in law) of the other claim.

Maybe I have misunderstood your point, but I have never come across a scenario of the type you describe, in any practical setting.

By parallel claims I mean "two separate claims". Even where the two claims are separate, then if both cases are commenced at roughly the same time I would have thought summary judgment applications would be listed for a hearing at roughly similar times. If the BofC summary judgment is granted, you could then off-set it against the BOEA judgment, putting you in a better position than if you hadn't cancelled the cheque.

I completely agree that summary judgment will be much harder to get for BofC, and certainly it will not happen if the material facts are under dispute. However, if the material facts are clear then I would have thought summary judgment is available, and indeed summary judgment is granted for a number BofC cases each term. I emphasise that I am only thinking of cut-and-dry cases such as where the product was never delivered or service never provided without any substantial reason - cases in which it would be difficult for a defendant or his solicitor to put forward any meaningful defence (at least not without committing contempt of court by signing the statement of truth on a defence which alleges facts known to be untrue).

I completely accept what you are saying about BofC cases being less likely to get summary judgment and likely to take longer through the courts, making this a risky strategy.

shocky_2

miduck wrote: »

It is odd that every one else understood and agreed with my post, yes?

I can only suggest that you speak to your supervisor about the deficiencies in your training. I have seen several posts where you have given very poor advice, and when picked up on it, rather than admitting your error (which we all make at times), you dig yourself a far deeper hole. I still doubt that you are a solicitor, but if you are, you should consider the damage you are doing to the image of your profession by acting in this way.

I didn't intend to insult you - I am simply going on the clear words of your post. The point is that cancelling a cheque is not fraud; entering into a contract where you never intend to pay is fraud. It is an important distinction, as explained above.

I am not going to rise to your personal insults. I merely suggest that you chill-out a little, perhaps have a beer, your post history suggests that you seek to put people down on unimportant matters in almost every post you make. I am perfectly content picking up my six figure pay check for doing a job I love and am very good at, thank you very much! :cool:

shocky_2

arcon5 wrote: »

What????!

Let me give an example:

1. Bob buys a TV from Sam.
2. Bob pays by cheque.
3. Bob cancels the cheque.

Only step 2 can ever be fraud. Bob commits fraud if he intended to cancel the cheque from the very beginning. Whether the cheque actually gets paid or not at step 3 doesn't matter to whether he has committed fraud.

Step 3 can never be fraud, because both criminal and civil fraud need you to make an untrue statement to another person. Cancelling a cheque is not a statement so it can never constitute fraud. If Bob cancels the cheque because the TV doesn't work, not fraud.

Most people who cancel cheques intend to pay at the start, but later cancel the cheque because they run out of money or feel they have been provided with an inadequate product or service. This is not fraud.

arcon5

youngsolicitor wrote: »

Let me give an example:

1. Bob buys a TV from Sam.
2. Bob pays by cheque.
3. Bob cancels the cheque.

Only step 2 can ever be fraud. Bob commits fraud if he intended to cancel the cheque from the very beginning. Whether the cheque actually gets paid or not at step 3 doesn't matter to whether he has committed fraud.

Step 3 can never be fraud, because both criminal and civil fraud need you to make an untrue statement to another person. Cancelling a cheque is not a statement so it can never constitute fraud. If Bob cancels the cheque because the TV doesn't work, not fraud.

Most people who cancel cheques intend to pay at the start, but later cancel the cheque because they run out of money or feel they have been provided with an inadequate product or service. This is not fraud.

I get your point... I don't get the huge contradiction in your post, especially where you say the intention of each party does not matter - when in fact the intention is core to whether a fraud has been committed or not. IE if it was the buyers intention to obtain the goods by presenting a cheque he knew would be cancelled then he would have fraudulently obtained those goods.

"The intent of the parties when the contract was entered into does not matter."
"What is fraud is entering into a contract with the intent of bouncing the cheque from the very beginning. The fraud is constituted by entering into the contract."

shocky_2

arcon5 wrote: »

I get your point... I don't get the huge contradiction in your post, especially where you say the intention of each party does not matter - when in fact the intention is core to whether a fraud has been committed or not. IE if it was the buyers intention to obtain the goods by presenting a cheque he knew would be cancelled then he would have fraudulently obtained those goods.

The intent of the parties when the contract was entered into does not matter.

Maybe I wasn't clear, for which apologies. My statement was part of the paragraph talking about cancelling a cheque and needs to be read in the context of that paragraph. What I was trying to say is that cancelling a cheque is not fraud, even if you never intended to pay in the first place. In this situation it would be entering into the contract part which is the fraud, not the cancelling the cheque part.

unholyangel

I think what he means (without dressing it up) is that the fraud is the entrance into a contract with the intent not to pay, its not the actual act/intent of cancelling the cheque.

ie payment method is irrelevant.