Suppose one of your customers is rumored to be nearing the brink of bankruptcy. You're relieved to finally receive a check from the company for the latest shipment of goods--until you notice it's for only half the amount owed. On the back, the check is stamped "payment in full." What should you do?
A decade ago, according to common law, you could endorse the check with the phrase "under protest." Then you could cash it and still have the right to pursue the customer, in court if necessary, for the balanced owed. That practice, however, has been disallowed by many states. In the past several years, many statutes have been passed that update the Uniform Commercial Code, the set of laws that govern commerce. Now if you cash the check, you've accepted that amount to settle the debt. If you're not willing to accept that amount, you have to send the check back.
"Frankly, I think it's a good law," says Douglas W. Campbell, a corporate attorney and in-house counsel for Structural Dynamics Research Corp. in Cincinnati. Campbell, who reports that many of his private-practice clients encounter this situation, acknowledges that it's irritating for business owners to be faced with a decision: Accept a lesser amount or send the check back. "Under the old law, the debtor could accept the money as payment on the account and reserve its right to seek additional payments," Campbell says.
The approach can also work well when there's a dispute over the quality of goods. Suppose you order 10 cases of custom-made widgets from The ABC Co. for $4,000. When they arrive, the widgets don't meet specifications and you have to modify them to make them meet your purpose. Then the bill arrives, and with it, a decision to make. You did indeed receive the widgets, but they weren't worth the $4,000 you'd agreed to pay. Because of time constraints, you didn't send the shipment back and insist the problem be corrected. Now what should you do? Of course you'll call or write the company to express your dissatisfaction, and you'll probably make an offer for partial payment. But keep in mind that ABC may not budge in its demand for full payment.
Under the old law, if you wrote a check for $2,000 and marked it "payment in full," The ABC Co. could cash the check and then turn the remaining debt over to its bill collectors. The whole matter would drag on and might end up in a lawsuit--hardly a cost-effective way to settle a relatively small debt. Under the new law, The ABC Co. has the partial payment in hand and can take it or send it back and pursue full payment--at the risk of getting even less. If the company cashes the check, legally that's the end of the matter.
"If a respectable amount is tendered, many creditors cash the check and accept it as full payment," Campbell says. The dispute is then settled and both companies can get back to business.
Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.
Playing By the Rules
What if you accidentally cash a check marked "payment in full"? Under the new law, you have 90 days to repay the debtor. Then you can pursue full payment as before. That won't work, however, if the debtor can prove that within a reasonable amount of time before receiving the check, you or whomever is responsible for your accounts receivable knew about the dispute and that a check intended to satisfy the debt in full was on its way. In that case, you can't really claim that cashing the check was an accident.
But suppose you have a retail business and hundreds of checks arrive every day. Although your accounts receivable department should be comparing each check to the amount owed, it's easy to let one marked "payment in full" slip by, even if it's not for the full amount. Given the volume of checks you receive, you may not discover the discrepancy until the 90-day period for repayment has passed. Or suppose you have a lock-box arrangement where the bank deposits checks directly, so no one in your company would have the opportunity to notice the discrepancy. The law allows you to avoid this scenario by conspicuously stating on your invoice that in the event of a dispute, the check should be sent to a specific person or office rather than the normal one. If the check--even for full payment--is not sent to the designated place, it won't count toward discharging the debt. That way, you have someone on the lookout for letters and checks that require special handling.
Can the debtor use this new law to get away with partial payment just as a means to save money? No, because the step must be taken in good faith. Suppose there was a clear agreement that you would pay $4,000 for the 10 cases of widgets, and when they arrived, they met specifications. You can't just send a check for $500, mark it "payment in full" and expect to get away with it. There has to be a bona fide reason for making the lower offer, such as a defect in the goods or your own financial straits.
If you're the creditor, receiving a "payment in full" check that isn't for the full amount can not only put you in an uncomfortable position but one that requires careful thinking. "Creditors can no longer accept full payment checks and anticipate bringing collection action for the remaining amount due," Campbell says. "Instead, they must carefully consider the ramifications of endorsing such a check, even under protest."
Under these circumstances, is this the best you can expect? Is it worth the time and expense to return the check and pursue collection, knowing you may end up with even less money? Remember, you have the power to choose who you will and will not do business with in the future. Sometimes it's just as well to cash the check, discharge the debt and get on with your work.