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Sued for stopped check

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bf1954

Junior Member
What is the name of your state (only U.S. law)? VA

This should be a simple question. I gave somebody a check as a gift, but we had a falling out shortly afterward BEFORE the check was cashed. I stopped the check, and now I'm being sued in small claims court. Does this person have a case?
 


Isis1

Senior Member
What is the name of your state (only U.S. law)? VA

This should be a simple question. I gave somebody a check as a gift, but we had a falling out shortly afterward BEFORE the check was cashed. I stopped the check, and now I'm being sued in small claims court. Does this person have a case?
yes. you stopped a contract after it was already signed.
 

tranquility

Senior Member
I disagree. Unless the recepient did (or promised) something, anything, in exchange for the gift, there is not a contract. While I believe the OP is responsible for any damages (returned check fees or other reliance damages) based on quasi-contractual remedies, she is not liable for the amount of the check.
 

bf1954

Junior Member
Thank you. What do you think I should tell the judge? That there was no contract because I didn't get anything in exchange for the gift?
 

tranquility

Senior Member
You don't need to tell the judge the law, you tell him the facts. Unless the other party alleges consideration on his part, you won't even need to talk.

If you have any proof it was a gift, I'd certainly bring that.

What was the gift for? How much was the check?
 

bf1954

Junior Member
It was $1000 to a client's son for graduating college and to be used for a laptop. It was really just a way to butter up the client, and the falling out was between me and the client.

Ironically the son started law school last month. I guess he thinks he's a lawyer already.
 

tranquility

Senior Member
Consideration does not need to flow between the two parties alone. I'd make sure to be ready to explain how you did not get anything from the client from the "gift" to his son. Unless specifically asked (don't lie), I wouldn't mention the attempt at buttering up the client.
 

Zigner

Senior Member, Non-Attorney
This is the Virginia code on the matter:
§ 8.01-27. Civil action on note or writing promising to pay money.

A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.


(emphasis added)


I predict our OP will lose in court.
 
This is the Virginia code on the matter:
§ 8.01-27. Civil action on note or writing promising to pay money.

A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.


(emphasis added)


I predict our OP will lose in court.
The key word in that law is "maintained." In short, a person may sue for an unpaid check. Suing is not the same as winning.

When a check is given as a gift, the gift does not actually vest until the check is successfully cashed. Prior to then, the gift is revocable.
 

Zigner

Senior Member, Non-Attorney
The key word in that law is "maintained." In short, a person may sue for an unpaid check. Suing is not the same as winning.

When a check is given as a gift, the gift does not actually vest until the check is successfully cashed. Prior to then, the gift is revocable.
I disagree with your assessment. Why? Because anybody can sue anyone for anything, and suing is not the same as winning. It would be unnecessary for your interpretation to be spelled out in the law, as it is already allowable.
 

tranquility

Senior Member
As to the statute, what are the damages for this civil suit?

Info edit:
I just read latigo's post and agree there could be a problem as to if the gift was completed.

Info edit, edit:
In tax issues, delivery of a check to a non-charitable donee is considered a completed gift when the check is deposited, cashed against available funds or presented for payment.
 
Last edited:
It would be unnecessary for your interpretation to be spelled out in the law, as it is already allowable.
Again, you haven't given the word "maintained" the proper significance.

You're correct that anybody can file any lawsuit. But you're incorrect if you think that any lawsuit can be maintained. I didn't think it was necessary at the time, but perhaps I should have written "a person may maintain a lawsuit for an unpaid check."

What does maintaining a lawsuit mean? The lawsuit would survive a motion to dismiss for failure to state a claim. That does not mean that all written promises for money are enforced. There are many reasons why a check may not be enforced.
 

Zigner

Senior Member, Non-Attorney
Again, you haven't given the word "maintained" the proper significance.

You're correct that anybody can file any lawsuit. But you're incorrect if you think that any lawsuit can be maintained. I didn't think it was necessary at the time, but perhaps I should have written "a person may maintain a lawsuit for an unpaid check."

What does maintaining a lawsuit mean? The lawsuit would survive a motion to dismiss for failure to state a claim. That does not mean that all written promises for money are enforced. There are many reasons why a check may not be enforced.
Backpedal much?
 

Zigner

Senior Member, Non-Attorney
If rephrasing my statement so as to better express my point is considered backpedaling, then I'm guilty as charged.

However, red herrings aside, § 8.01-27 does not indicate that "our OP will lose in court."
Never said it did - but I won't rephrase my prediciton
 

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