The Gaon Rabbi Menashe Klein zt”l (Mishneh Halachot, Vol.7:260) discusses an interesting theory suggested by a renowned rabbinic authority in Israel. If a debtor gives a creditor a check that predates Rosh Hashanah of the eighth year, this authority argues that shemittah does not cancel the debt (if the creditor doesn’t cash it) since banks in Eretz Yisrael close at noon on the eve of festivals – and checks cannot be cashed in the afternoon.
Rabbi Klein, however, disagrees and writes: “I apologize to the renowned rav, but this reasoning cannot apply. Is this a matter dependent on the bank? [It is rather dependent on the check and] since the time of payment has come and the check has not been cashed, the debt is canceled. Similarly if, for example, the check was burned, the renowned rav would agree that the debt is canceled because the time of payment came and the check was not cashed.
“In the case before us, the creditor could have gone to the bank in the morning and received the money, for according to the date on the check it had matured in the morning.
“Besides,” he continues, “we cannot say [that shemittah does not cancel the debt]. Suppose a person owed money to someone and he deposited money with a trustworthy person (a “shalish”) and gave the creditor a writ entitling him to receive the money from the shalish. The shalish said that if the creditor came with such a letter, he would hand over the money. The payment is due (at its proper time) even if the shalish is not at home. The same applies if the borrower gave a check to the creditor and deposited money in the bank [to cover the check] and the bank is closed. This has no bearing on whether the time of repayment has arrived or not.”
Rabbi Klein points out that this whole question is related to the well-known controversy among later halachic authorities regarding banknotes and checks: Are these considered cash or shetarot (promissory notes)? This is relevant regarding pidyon haben, among other matters. Rabbi Klein cites numerous authoritiesincluding the AruchHaShulchan (Yoreh De’ah 305:16-18), who rules that we may fulfill that precept either with kesef (silver coins) or with shaveh kesef (cash equivalent).
The ChatamSofer (Responsum 134) opines that pidyon haben should not be effectuated with shaveh kesef. However, payment of the ketubah of a widow who comes to collect what is due her may be given in shaveh kesef. She does not need to be paid in silver coins; only regarding bechor behemah and ma’aser sheni does the Torah specify payment with silver coins. (Rabbi Klein notes that he discusses elsewhere the seeming problem of the Chatam Sofer’s statement regarding pidyon haben, which does not require silver coins.)
Rabbi Klein explains that a check is actually a promissory note similar to a banknote, which is used to collect cash to satisfy a loan. The cash itself is held by the bank, not the debtor. He points out that many later halachic authorities argue similarly.
If so, it follows that the bearer of a check is considered to already be in possession of the money when the time of payment arrives. Now, one might argue that such is the case if one receives a bank’s check or money order, but not a typical check. For a typical check, the bank does not separate the funds as soon as the account holder writes the check – only as soon as the check is deposited – i.e., as soon as the creditor comes to collect the debt. The answer to this argument is very simple: Governmental banking rules in most countries make it unlawful to write a check when there is no money in the account on which the check is to be drawn. Thus, if the time of payment has come and a creditor is holding a check, he has in effect been paid and shemittah does not cancel the debt.
