Monday, November 16, 2009

The Use of Post-Dated Cheques in Commercial Transactions

Post-dated cheques are often used in Oman in business transactions to make payments in series, such as in construction contracts or rental agreements or car purchases or to discharge any large indebtedness. The use of this common instrument in Oman can sometimes result in problems for both the recipient of the cheques and the entity bound to make the payment by cheque (the “drawee”).

For example, the recipient of the cheque may seek to obtain payment under the cheque and find that there is a hold on the cheque or lack of funds in the account. In such an instance the bearer of the cheque has the option of lodging a criminal complaint with the Royal Oman Police (ROP). The ROP will conduct an investigation, and if appropriate refer the matter to the public prosecutor. Thereafter, the matter would be handled by the criminal courts of Oman.

There are two major circumstances in which the failure of a cheque will not suffice to form the basis of a criminal case in Oman. First, the failure of the cheque must be the result of bad faith in order for a criminal case to result. If the failure of the cheque is the result of a good faith claim regarding the payment, for example, if the drawee puts a hold on the cheque because the product or service provided is deficient or not delivered, this failure will either mean the file is closed before it reaches the courts, or else it could lead to the collapse of the criminal case.

Second, if the cheque was issued as a method for guaranteeing payment, and not as the actual basis for making the payment, then the failure of the cheque cannot form the basis of a criminal case. Post-dated cheques issued for guaranteeing payment often have the words “guarantee” written on them. If such cheques bounce, the drawer will have difficulties as Omani law says that these cheques were not intended as the primary mode of payment.

Those receiving payments by post-dated cheque should make sure the cheque does not include the words “guarantee” if the cheque is the intended method of payment and any underlying settlement agreement should make it clear that the post-dated cheques in question are the primary, intended mode of payment. In addition, if a cheque fails, the bearer of the cheque should be sure to lodge the complaint with the ROP within three months.