Nowadays, many people and businesses use online banking to send and receive money, so cheques are not as commonly used as they once were. Nonetheless, they are still valid tender in Spain and are still sometimes used to send money from one bank account to another.
The act of writing a dodgy or fraudulent cheque (dud) is illegal. This article will cover what dud cheques are, why they are illegal, and what you need to do if you receive one.
What are dud cheques?
There are a few different reasons why a cheque would be considered dud:
The drawer (person who is sending the cheque) might not have enough money in their account to transfer it.
The cheque might have an error on it (name of payee or bank details).
The cheque is from a bank account that does not exist.
Why is it illegal?
The Spanish Criminal Code does not specify the crime of sending dud cheques. However, they fit within the category of scams, which is a crime. This is because you are deceitfully stopping people from claiming money that is rightfully theirs.
In very serious cases, this could bring the punishment of significant fines or even prison time.
What happens if you receive a dud cheque?
If you are the payee (person receiving the money transfer) the cheque will bounce. The bank will not be able to take money from the drawer’s account so therefore this money will not reach your account.
Firstly, you should check with the person or business who wrote you the cheque. In the best of cases, it was simply an unfortunate mistake. This mistake can be rectified and then the cheque can be properly lodged.
If it was not an innocent mistake however, you will need to claim the money before the court. A lawyer and a ‘procurador’ are needed to present the case (procuradores are a special type of lawyer here in Spain; our firm will sort out finding a procurador for you). They will present the demand before the ‘Juicio Cambiario’, which is the section of the Spanish courts designated to deal with these cases, or a criminal complaint, in case that you have been scamed.
In the case of a Juicio Cambiario (a kind of civil lawsuit), once the demand has been presented before the court, the drawer of the dud cheque will have a period of 10 days in which to oppose it. There are very few reasons why they would successfully be able to oppose the dud cheque. Then, they will have to pay the money they owe you from the original cheque. Furthermore, they will have to pay interest for late payment, your legal costs, and any other expenses that arose from the non-payment.
Evidence needed:
If possible, keep all of the following evidence as it will be needed before the court:
The original dud cheque.
Accreditation that the cheque was not paid. This can be done either by a notary or the bank itself (“protesto”).
If possible, a contract or agreement showing how much money the drawer originally agreed to pay you. This is so that they cannot claim that they should have never paid you the money in the first place, which would delay the process and result in more court costs.
DISCLAIMER: this article might not be up-to-date and cannot be considered definitive legal advice. For specific information and a consultation please contact our lawyers using the details below.
Piñera del Olmo
c/ Aribau 114, entlo (mezzanine) 2ª
08036 Barcelona
Phone: +34 93 514 39 97
Fax: +34 93 127 07 66
Email: rpinera@pineradelolmo.com