A check is an instrument by which the drawer disposes of his funds deposited with the drawee (which must be a bank), by making sight withdrawals, either to himself or to the beneficiary.
The check puts in relation three persons, namely:
- The drawer: the person who issues the check;
- The drawee: the bank that must pay;
- The beneficiary: the person who must receive the payment
1– Conditions for the creation of the check:
The check, like all commercial instruments, is a written document subject to the formalities of the law of exchange relating to the information it must contain.
The check must contain a certain number of mandatory statements:
- Name: The cheque must contain the word “cheque”, inserted in the text of the document itself and expressed in the language used for the drafting of the document.
- Mandate for payment of a specific sum: According to paragraph 1 of article 239 of the commercial code, the sum is generally written in letters and figures. In the event of differences between the two mentions, it is the sum carried in letters which prevails.
- Name of the drawee: This is the name of the banking institution.
- Place of payment: The check must indicate the place where it is payable.
- Date and place of creation: The cheque must bear an indication of the place where it is established as well as the date of the day it is written.
- Name and signature of the drawer: The person who issues the cheque must sign it. The signature must be handwritten.
2- Payment of the check:
a) Presentation for payment:
The presentation for payment of the check can be done from the day of the issue since it is payable at sight. The bearer has a certain period of time during which he must present the check for payment or lose his right to recourse to the exchange.
The time limits are 20 days from the date of issue for checks issued in Morocco, and 60 days for checks issued abroad.
After the expiry of the presentation period, the drawee is still required to pay the bearer under penalty of a fine of 5,000 to 50,000 dirhams.
b) Limitation periods:
Article 259 of the Commercial Code provides for three limitation periods depending on the parties involved:
- For the actions of the bearer against the endorsers, the drawer and the other debtors, the limitation period is 6 months from the expiration of the presentation period;
- For actions of the various obligees against each other, the limitation period is also six months from the day on which the obligee has repaid or from the day on which he himself has been sued;
- Finally, for the action of the bearer against the drawee, the limitation period has become one year from the expiration of the presentation period.
After this period, the bank may refuse payment of the check, but the claim is not extinguished and the bearer retains recourse against the signatory.
The check will then be considered as an acknowledgement of debt that can be used as evidence to initiate an action for payment.
c) Blocking the payment of a cheque:
According to Article 271 of the Commercial Code, the drawer may only block the payment of the check, and thus prevent payment of the check given to its seller, in the following cases:
- Loss of the check;
- Theft of the check;
- Fraudulent use of the check;
- Forgery of the check;
- Declaration of the bearer in a state of receivership or judicial liquidation
The drawer must immediately confirm his opposition to payment in writing and support this opposition with any useful document.