The Saudi Commercial Papers Law criminalized the act of the drawer involved in issuing a cheque that is not dated, or that an incorrect date is mentioned. Here arises a question: Does criminalization also include the act of such a drawer who issues a cheque with two dates?
We find that the Saudi Commercial Papers Law in Article No. (102) stipulates that a cheque includes only one date, and every statement contrary to that is considered as if it did not exist, and a cheque is due upon sight.
Jurisprudence differs in answering this question. Some believe that a cheque that bears two dates, one for issuance and the other for maturity, falls under the forms of the incorrect date stipulated in Article No. (120) of the Commercial Papers Law.
Others believe that mentioning two dates in a cheque contradicts its nature, as a tool of fulfillment, not a tool of credit, and that if it carries two dates, it loses its status as a cheque and turns into an ordinary bond of indebtedness. By analyzing the benchmarking legislative and judicial trends and opinions, they can be divided as follows:
Opinion One: Writing two dates causes a cheque to lose criminal protection:
The first opinion determines that a cheque with two dates loses one of the essential elements in the cheque legal structure, which would cause it to lose the cheque status as a commercial bill, and it would also lose its components as a payment instrument that is considered to be as money and turns it into a credit instrument.
In the same vein, the Egyptian Court of Cassation states, in many associated rulings, that “a cheque bearing two dates loses its characteristics as a payment instrument that is considered as money and turns into a credit instrument. Accordingly, such a cheque shall fall outside the scope of criminal protection”.
It has also decided that the nature of cheque as a payment instrument required that the date of withdrawal be the same as the date of payment: As a result of such failure, the paper has lost its components as a payment instrument that is considered to be money, and thus turned into a credit instrument and fell outside the scope of criminal protection.
The Abu Dhabi Court of Cassation rules that if the bill bears two dates, then it loses its components as a payment instrument to be considered and act as money, turning into a credit instrument, thus falling outside the scope of the application of Article (401) of the Federal Penal Code, which grants protection to cheque as legally defined.
Since that was the case, and the view into the cheque in question is of high relevance that it bears two dates: 15/12/2016 and 18/09/2017, and thus it lost its components as a payment instrument”. If the contested ruling violated this view and ruled to convict the appellant for issuing such a cheque without a balance, even though the cheque had two dates, then he would have misapplied the law, rendering it invalid, and the contested ruling would have to be overturned and reversed, the appeal ruling in absentia would be annulled, and the appellant would be acquitted of what was attributed to him.
Opinion Two: a cheque with two dates shall not lose criminal protection:
The jurists who hold this opinion believe that if a cheque bears two dates, (creation date and cheque date), this does not affect the validity of such a cheque. Here, the due date must be neglected and considered as if it did not exist; many legislation systems have adopted this opinion, including the Kuwaiti Legislation, in which Article (532) of the Commercial Law No. (68) of 1980 stipulates that:
- A cheque shall be payable as soon as it is viewed, and any statement contrary to this shall be deemed as if not there.
- If a cheque is presented for payment before the day shown on it as the issuance date, it shall be paid on the day of presentation.
The Kuwaiti Court of Cassation rules that that a cheque is due for payment as soon as it is viewed. Simply put, a cheque shall not lose functionality if it bears a date later than the issuance date. In this regard, the Jordanian Court of Cassation decides that: a cheque with two dates, (issuance date and due value date), does not invalidate functionality as a cheque. In the same vein, Article (245) of the Commercial Law stipulates that a cheque shall be obligatorily payable once viewed, and any statement contrary to the foregoing shall be considered as if not there. In other words, the issuance date of a cheque does not matter.
In the same vein, the Syrian Legislation adopts the same opinion, as it states:
Article (368) of the Commercial Law No. (33) of 2006 states that:
- A cheque shall be payable once viewed and any statement contrary to this shall be deemed as if not there.
- A cheque presented for payment before the day shown as the issuance date shall be paid on the presentation day.
Likewise, the Lebanese Legislation in Article (425) of Law No. (304) of 1942 regarding the Land Commercial Law:
A cheque shall be payable once viewed. Any mention in violation of the said law shall be considered null and void. A cheque presented for payment before the day designated as the issuance date shall be payable on the presentation day.
For our part, we see that the Saudi Commercial Papers Law mentions the forms of the drawer’s crimes exclusively, not representation. There is no justification for saying that the drawer’s setting two dates is considered an incorrect date and is criminalized under Article No. (120) of the Commercial Papers Law, because considering the two dates as an incorrect date is analogy in criminalization; analogy in criminalization is prohibited. This means that it is not permissible to measure or interpret in an expanded manner in the criminalization so that it results in the introduction of other forms of the act of a drawer that are not stipulated by law.
Therefore, it is understood that this limitation narrows the scope of criminal protection of cheque, as a drawer can issue a cheque and put two dates in it, and use it as a guarantee tool, and escape criminal liability. This method of using cheques shakes confidence and contradicts the goal of the Saudi Law, which seeks to preserve the economic function of cheques (as a payment tool that acts as money does).
Therefore, we believe that it is better for the Saudi regulator to consider the possibility of amending the relevant article. They include an explicit provision that criminalizes the action of a drawer who puts more than one date on a cheque.
Dr. Fawaz Al Eifan.
