Is it legal...

talktalktobt

Without going into the background (not needed - i don't think) can someone give me some advice...

I sent a cheque which was physically attached to a letter. The letter contained a stipulation over it being cashed. The organisation involved have admitted that the letter was removed and disposed of without reading - the cheque was cashed. They haven't fulfilled the stipulation.

I have proof of their actions (the call of them admitting this has been recorded). In terms of legality, are they able to do this?

zygurat789

talktalktobt wrote: »

Without going into the background (not needed - i don't think) can someone give me some advice...

I sent a cheque which was physically attached to a letter. The letter contained a stipulation over it being cashed. The organisation involved have admitted that the letter was removed and disposed of without reading - the cheque was cashed. They haven't fulfilled the stipulation.

I have proof of their actions (the call of them admitting this has been recorded). In terms of legality, are they able to do this?

They are able to do it because they have done it.
What loss or disadvantage have you suffered? Is it worth what maybe an expensive argument?

Mistral001

It is only illegal if it breaks a law. No law seems to have been broken here. In fact all it seems they have done is ignore a request from you which is probably not even a breach of contract, meaning that it is unlikely that you can sue for damages.


It seems like a straight-forward business-to-business misunderstanding.

WestonDave

Depends on the stipulation and whether it has any legal force. I can think of a couple that would and at least one that would not.


The one that would not would be a cheque that you requested wasn't cashed until a certain date (because then you'd have funds in the account). Whilst it would be sensible to comply with that request there is no legal way of insisting especially if it were for a debt etc that was due.


If there was a contract involved - i.e. I will pay this amount for X good or service, and only half of the contract has been fulfilled then technically the other party is in breach of contract. That still doesn't specifically make cashing the cheque wrong but does require them to fulfil their part of the bargain.


The other one would be a restricted donation to a charity - i.e. this money is to pay for "a left handed walking stick for Mrs Jones". By law that request has to be complied with or the money returned (unless you agree to it being used for something else - if for example Mrs Jones had died before it could be used).

InsideInsurance

As others have said, you need to give the background of the content of the letter and the background before that.

You couldnt send them a letter saying they must kill their first born if they cash the cheque and then expect them to do it

Aquamania

talktalktobt wrote: »

Without going into the background (not needed - i don't think) can someone give me some advice...

I sent a cheque which was physically attached to a letter. The letter contained a stipulation over it being cashed. The organisation involved have admitted that the letter was removed and disposed of without reading - the cheque was cashed. They haven't fulfilled the stipulation.

I have proof of their actions (the call of them admitting this has been recorded). In terms of legality, are they able to do this?

Probably not the answer you want to hear, but this is all entirely legal.

As a business, we also bank all cheques as soon as possible after receipt for safekeeping reasons ... and that would include any post dated cheques etc.

What you should have done if you did not want the organisation to bank the cheque was not to send it ... at least until you had confirmed whatever stipulation was in the letter had been done.

Whether or not the organisation is entitled to keep the money you sent them is a different matter and would depend on trhe details (some of which you have acknowledged you have not disclosed here) but on the face of it, if the organisation hasn't (or isn't) going to supply the goods or services you ordered, then they are not entitled to keep the money you paid for that.

So what is the position now?
Are they going to do what you wanted?
If not, are they refusing to refund you?

bris

If it's a full and final settlement you have made a huge mistake, once they have the cheque they can cash it without accepting your offer, a cheque is like cash.


What you need to do when making this offer is tell them what you can pay and get them to accept the deal before sending the cheque.


There are plenty case law to say full and final settlements are very risky.
This one is very similar.

Recent case law
In Inland Revenue Commissioners v Fry [2001] All ER (D) 434 (Nov), the Commissioners sued the defendant for a sum in excess of £100,000 in respect of income tax and other liabilities. The defendant's husband sent a cheque in the sum of £10,000 in full and final settlement, which the defendant contended had been accepted by the Commissioners in satisfaction of the debt. The decision was made in favour of the Commissioners on the grounds that there had been no 'meeting of the minds'; the Commissioners had banked the defendant's husband's cheque without any knowledge that it was offered in full and final settlement, as it was detached from the covering letter containing the offer, before being passed to the appropriate caseworker. Upon receiving the covering letter, the caseworker immediately called the defendant's husband to inform him that the cheque had been banked but was not accepted. In this case, it could not then have been said that there had been any act of acceptance.

talktalktobt

Hello, I don't want to go into too much detail because it is tedious and I may start a rant.

HMRC stated outright that I didn't have to pay a late payment penalty for a few reasons but one of the main ones was they made an error in sending out a form.

They changed their mind and sent me a penalty. I went through the appeals process and they rejected everything.

Without any warning what-so-ever they sent this to a debt collector. I sent in a cheque directly to HMRC (as advised by the debt collections company). The letter simply stated that the payment was under duress and I wanted this noted on my file. They didn't do this and this resulted in me being told that they don't read letters attached to payments (which makes no sense as this is the only way they could have fount my UTR).

Mistral001

talktalktobt wrote: »

The letter simply stated that the payment was under duress and I wanted this noted on my file. .

Whether HMRC or whoever, its is not your call. They are their files and they can note what they wish to note in them.

rjlarke

talktalktobt wrote: »

Without going into the background (not needed - i don't think) can someone give me some advice...

I sent a cheque which was physically attached to a letter. The letter contained a stipulation over it being cashed. The organisation involved have admitted that the letter was removed and disposed of without reading - the cheque was cashed. They haven't fulfilled the stipulation.

I have proof of their actions (the call of them admitting this has been recorded). In terms of legality, are they able to do this?

Post dated cheques (etc) are ignored by the banks. They do not check the date. I've had a very long argument with Lloyds over this and it's something they simply do not promise to do any longer. It's in all their terms and conditions. I should imagine it would be a similar legal stand point for your recipient. They were your terms, they did not sign a contract. But If your stipulations were indicating that you did not agree to their terms and conditions (hence contract) and were asking them to alter them or there was no deal. Then you would have some sort of legal argument. In essence they put a contract in front of you, you agreed in principle with caveats, if they did not agree to the caveats they should have rejected your purchase. On accepting your purchase they agreed to your caveats. If that makes sense.

talktalktobt

Just heard back after getting some legal advice. The answer is that they do have to note that the payment was made under duress. It is recommended to pay by cheque and physically write this on the cheque as in this does not allow anyone to 'forget'.

I do appreciate everyone help, however, I would remind everyone that places like this are great for opinions and help but always make sure you get advice from proper experts to be 100% sure.