1. No category

32 Journal of International Banking Law and Regulation
Contradictory Terms
in Cheques:
Formalism and
Practice
*
Bashar H. Malkawi
keywords to be inserted by the indexer
Abstract
There are certain exceptions or limitations to the general
rule of prior authorisation from the owner of a work.
Some of these exceptions fall under a three-step test of
TRIPs Agreement art.13. Other limitations that fall under
TRIPS Agreement art.9.1 include the appendix of the
Berne Convention of 1971. The former limitations could
be labelled as “fair uses”, and the latter as
“non-voluntary licenses”. Both of these exceptions are
covered under the Copyright Top of Form.
Introduction
The use of cash in transactions carries several drawbacks
including insecurity as it can be lost or stolen.1 The
purpose of the law of negotiable instruments is to facilitate
transactions by using cash substitutes. Cash substitutes
include cheques, drafts, and promissory notes. However,
cheques are the most commonly used form as a payment
system. In 2006, for example, the total number of cheque
transactions in Jordan was 109,319.2 In comparison,
cheques were used in 42.5 billion transactions in the US3
Therefore, this article will concentrate on the regulatory
framework of cheques in Jordan and their practical usages
as conducted by banks.
The Jordanian law on negotiable instruments, or
commercial papers, provides certain formalities for
cheques.4 In addition, recent court decisions emphasise
these formalities and act as gap fillers in cases which the
law does not address. The law as well as court decisions
form a coherent body that governs bank practice.
However, banks in Jordan practice in a manner not in line
with the letter of the law and court decisions. The practice
by banks creates law-practice discrepancy and de facto
patterns different from what the law and court decisions
say. Practice of banks can be considered as informal
amendment to the law. The best example for law-practice
discrepancy is the case of contradictory terms in cheques,
especially as they relate to use of words and numbers.
The following sections analyse contradictory terms in
cheques as a matter of law and practice. The starting
section provides discussion of the legal framework
governing cheques. The article then analyses the law as
pertains to formalities in cheques and a recent court
decision regarding contradictory terms in cheques. The
article, finally, provides conclusions aimed at streamlining
banking practices in the area of contradictory terms.
The legal framework of cheques
A cheque is a three party instrument. The drawer calls
upon a drawee to pay to the order of a named payee or to
the bearer of the instrument an indicated sum of money.5
A cheque is a demand instrument. The cheque can be
presented to the drawee bank immediately. Thus, the
holder of a cheque can exercise substantial leverage over
the debtor since it is due and payable at execution and
full payment can be demanded at any time.6
The law does not differentiate between ordinary
cheques, cashier’s cheques, teller’s cheques, and
traveller’s cheques.7 The law treats these types as cheques
without distinction. Cashier’s cheques and teller’s cheques
are classified as bank cheques and differ from ordinary
or personal cheques. Unlike the drawer of an ordinary
cheque, the purchaser of a cashier’s cheque or teller’s
cheque may not be able to require the bank to stop
payment.8 Additionally, since the cashier’s cheque or
teller’s cheque is drawn by a bank on its own funds, the
possibility of dishonour due to insufficient funds is small.
Hence, cashier’s cheques and teller’s cheques can be
considered the equivalent of cash.
*
Dean and Professor of Law, University of Sharjah, UAE. Department of Law, Yarmouk University, LL.B. 1999; James E. Rogers College of Law, University of Arizona,
LL.M. 2001; Washington College of Law, American University, S.J.D. 2005. Special thanks to the reviewers for their insightful critique and helpful comments.
1
See B. Geva, “From Commodity to Currency in Ancient History: On Commerce, Tyranny, and the Modern Law of Money” (1987) 25, Osgoode Hall L.J. 115, 130.
2
See Central Bank of Jordan, Yearly Statistics Series-Check Clearing at http://www.cbj.gov.jo/uploads/si_15.xls [Accessed 28 September 2015].
3
See Geoffrey R. Gerdes and Jack K. Walton II, “The Use of Checks and Other Non-cash Payment Instruments in the United States” (2002) 88 Fed. Res. Bull. 360, 360.
4
The terms “commercial papers” and “negotiable instruments” can be used interchangeably. See Ronald J. Mann, “Searching for Negotiability in Payment and Credit
Systems” (1997) 44 UCLA L. Rev. 951, 983 (the term “commercial paper” generically describes all types of commercial negotiable instruments: promissory notes, drafts,
cheques and certificates of deposit). See also William H. Lawrence, “Diagramming Commercial Paper Transactions” (1991) 52 Ohio St. L.J. 267, 271.
5
See Jordanian Code of Commerce No.12 of 1966 art.123.c.
6
Such leverage, however, is not possible with instruments payable at a definite time such as promissory notes or bills of exchange. Time instruments are not due until the
date specified in the note, and demand for payment cannot be made until that date arrives. See Kurt Eggert, “Held up in Due Course: Codification and the Victory of Form
over Intent in Negotiable Instrument Law” (2002) 35 Creighton L. Rev. 363, 375, 377–389.
7
A cashier’s cheque is one issued by a bank, and sold to its customer to be payable to a third party, while a teller’s cheque is drawn by a bank on another bank. A traveller’s
cheque is an instrument issued by banks and non-banks that is payable to the order of the purchaser and is payable on demand. See Alex Y. Lieberman, “Checking in and
Cashing out: Cashier’s Check Fraud, Depository Liability and Proposed Solutions” (2008) 12 N.C. Banking Inst. 353, 356. See Gregory E. Maggs, “Determining the Rights
and Liabilities of the Remitter of a Negotiable Instrument: A Theory Applied to Some Unsettled Questions” (1995) 36 B.C. L. Rev 619. See also Henry H. Perritt Jr, “Legal
and Technological Infrastructure for Electronic Payment Systems” (1996) 22 Rutgers Computer & Tech. L.J. 1, 10–13.
8
See Leona Beane, “Rights of Drawers, Banks, and Holders in Bank Checks and Other Cash Equivalents” (1984) 19 Tulsa L.J. 612.
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Contradictory Terms in Cheques: Formalism and Practice 33
Requisites for a valid cheque
Parties to a cheque
For a writing to qualify as a cheque, it must comply with
the requisites set forth in law. A failure to comply with
these requisites renders the cheque invalid.9 The requisites
of a valid cheque are related to the risks and
administrative costs incurred by the payee. The risks are
measured by the likelihood that the payee will be paid
the sum owed when payment is due.
The word “cheque” must be inserted within the very
text of the cheque and expressed in the language used for
writing it.10 In other words, the law requires that the item
be called a “cheque”. The need for inserting the word
“cheque” seems to be historical. Even if the word
“cheque” is missing, the instrument can still be called a
cheque and is considered valid if all essential terms can
be ascertained from the face of the instrument.
The cheque is an unconditional order to pay a
determined sum.11 The instrument must be free from any
condition.12 However, there is a presumptive condition
that, at the time of creating the instrument, the drawer
has sufficient funds to cover the sum of the cheque.13 As
currently stands, the law does not provide further details.
The law does not specify what type of conditions
invalidates a cheque. Will a reference in the writing that
the cheque is issued for payment of rent invalidate the
instrument? It can be assumed that what invalidates a
cheque as a negotiable instrument would be subjecting
the cheque to another writing. For example, a cheque can
be invalid if payment is contingent upon receiving a
functioning bicycle. Also, the cheque must call for
payment of a fixed amount of money.14 Money can be in
local or foreign currency.
The cheque must include the name of drawee, place of
payment, and date of issuance.15 A cheque is always drawn
on a bank.16 In the absence of an indication as to the place
of payment, it is the place indicated beside the name of
the drawee or the place of the main establishment of the
drawee. Date of issuing the cheque plays an important
role in determining the capacity of the drawer and
commencing of the prescription period.17 The cheque must
be signed by the drawer.18 Any symbol can be used to
sign. The purpose of requiring signature is to authenticate
the intention to be bound by the instrument.
In a cheque, the drawer calls upon the drawee to pay a
fixed amount of money.19 While the drawee has primary
liability for payment, the liability of the drawer of a
cheque is secondary. Once a cheque is accepted, the
drawer is discharged. The beneficiary is the party to
whom a cheque is issued. The cheque may be made to a
specific person or to the bearer.20 The cheque may be
made also to the order of the drawer himself or for a third
party’s account.
The drawee is called upon to pay the amount due on
the cheque.21 Hence, the drawee is not party to the cheque
until the drawee accept the obligation. Failure by the
drawee to accept the cheque may give rise to the drawee
being liable to the drawer to whom a duty to accept is
owed.
Endorsement
Negotiation in the law of negotiable instruments is a
special transfer of intangible rights in a negotiable
instrument.22 Negotiation of a cheque always entails the
delivery of the instrument to an entity who becomes a
holder. Negotiation of a bearer cheque requires transfer
of possession. In the case of a cheque payable to a specific
payee, negotiation requires endorsement by the drawer
or holder and transfer of possession.23 If a cheque is
deposited into a bank, the payee will have to endorse the
cheque so that it can be negotiated when moving through
the bank’s collection process.
A cheque can be transferable by endorsement through
the drawer’s notation on the back of the cheque. Under
the law, any person to whom a cheque is issued can
negotiate it. There need be no special designation or
nomination of a person for it to do so.24 Endorsement
entitles the endorsee to claim under the cheque as if it
were payable directly to him.
An endorsement must be unconditional.25 Any condition
on which endorsement may depend is unacceptable. To
effect negotiation, an endorsement must purport to convey
the entire instrument. Thus, partial endorsement is void.
9
See Jordanian Code of Commerce No.12 of 1966 art.229. See also Court of Cassation, Case No.1731/2005, Adaleh Publications (2005).
See Jordanian Code of Commerce No. 12 of 1966 art.228.a. See also Court of Cassation, Case No.258/88, Journal of Bar Association 328 (1990).
11
See Jordanian Code of Commerce No.12 of 1966 art.228.b.
12
See Court of Cassation, Case No.153/87, Journal of Bar Association 1028 (1988) (The cheque is not considered a negotiable instrument if it contained a condition that
it would be paid if the land is sold.) See also Court of Cassation, Case No.1785/2006, Adaleh Publications (2006).
13
See Jordanian Code of Commerce No.12 of 1966 art.231.a.
14
Jordanian Code of Commerce No.12 of 1966 art.228.b.
15
Jordanian Code of Commerce No.12 of 1966 art.228.c, d and e.
16
Jordanian Code of Commerce No.12 of 1966 art.230. See also Arthur Lewis, Banking Law and Practice (Tudor Business Publishing, 1998), p.155.
17
Prescription is a mode of barring of actions as a result of inaction for a period of time. Prescription is not merely a mechanism for the release of debts; rather, it is a mode
of extinction of claims. See Mahir Jalili, “Time Bar Clauses in Saudi Arabian Contracts,” (1996) 13 Int’l Construction L. Rev. 488, 490–91. See also Reinhard Zimmermann,
Comparative Foundations of the Law on Set-Off and Prescription (2002), 76.
18
See Jordanian Code of Commerce No.12 of 1966 art.228.f.
19
Jordanian Code of Commerce No.12 of 1966 art.123.
20
Jordanian Code of Commerce No.12 of 1966 art.233.
21
Jordanian Code of Commerce No.12 of 1966 art.230.
22
See James E. Byrne, “Negotiation in Letter of Credit Practice and Law: The Evolution of the Doctrine” (2007) 42 Tex. Int’l L.J. 561, 563–564.
23
See Jordanian Code of Commerce No.12 of 1966 art.239. See Court of Cassation, Case No.4179/2005, Adaleh Publications (2006).
24
See Jordanian Code of Commerce No.12 of 1966 art.144.
25
Jordanian Code of Commerce No.12 of 1966 art.240.
10
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34 Journal of International Banking Law and Regulation
An endorsement can be a “blank endorsement” which
specifies no specific person and just consists of a
signature.26 A blank endorsement can convert a cheque
into a bearer cheque. An endorsement can be also a
“special endorsement” which specifies the person to
whom order the cheque is payable and requires that
person’s endorsement to enable further negotiation of the
instrument. Thus, a blank endorsement can be converted
into a special endorsement by adding words identifying
the person to whom the instrument is to be paid.
In general, negotiation of a cheque cannot be prevented.
However, it is possible to restrict further negotiation by
indicating in the endorsement that it is “for collection”
or “for deposit”.27 In this case, there can be no further
negotiation and the cheque enters into the bank collection
process. A way to increase the value of the instrument is
by an endorsement “collection guaranteed”.28 This type
of endorsement gives rise to liability in the guarantor only
when the cheque after being presented was not honoured.
Presentment and payment
A cheque is payable on demand.29 Presentment is the
demand to honour the instrument made upon a drawee
to pay the cheque that has become due. The cheque
collection process is not instantaneous. In most cases, the
payee presents the cheque directly to the payor bank for
payment or the payee will deposit the cheque at another
bank for collection which will forward the cheque, usually
through intermediary banks, to the payor bank. The bank
will review the signature(s) and examine the cheque for
alterations or other indication of fraud. The depositary
bank will require the payee to indorse the cheque and that
endorsement will trigger the collection process. Since
cheques in fact are paid, each collecting bank in the chain
gives provisional credit for the amount of the cheque to
its predecessor in the chain as the cheque moves toward
the payor bank.30 Then, in the unlikely event that the payor
bank dishonours the cheque, the credits can be reversed.
In the case that a cheque is presented for payment
before the date indicated as the date of issue, it is payable
on the day of presentation. Once payment is made, the
drawer and drawee are discharged. If the cheque,
presented in due time, is not paid, then the payee can sue
the drawer, endorser, and other obligees.31 The payee can
establish his case for recovery by simply producing the
cheque and establishing the authenticity of the drawer’s
signature. Once the case is substantiated, the payee is
entitled to recover unless the drawer establishes a defence.
In this case, the payee can recover the unpaid amount of
the cheque, interests, and other charges.
Formalism and practice: A dissonance
The largest volume of negotiable instruments handled by
banks is cheques. Cheques are simplified documents with
certain pre-determined requirements. The volume of
papers involved in cheques forced banks in Jordan to
resort to automation and computerisation.32 Some legal
requirements for a cheque can be outdated in the digital
age. In practice, banks ignore some formalities as a result
of the volume of paper involved. However, courts have
been unprepared to go along with bank’s practices.
One area of divergence between formalism and practice
is contradictory terms. The law in Jordan does not provide
specific provisions that address for example the case
whereby typewritten terms on the cheque differ from
printed terms or numbers. In comparison, in the US, the
Uniform Commercial Code (“UCC”) reconciled
contradictory terms. For example, the UCC provides that
typewritten terms prevail over printed terms and
handwritten terms over both. Additionally, words prevail
over numbers.33 Thus, law in the US expressly attempts
to reconcile the difference caused by contradictory terms.
In Jordan, courts have stepped in to fill the gap that exists
in the law. However, banks still do not follow courts’
decisions and rather follow their own practices. An
examination of the divergence between formalism and
practice in Jordan with regard to contradictory terms in
cheques is illustrated in the following case.
The case
On 30 February 2014, the drawer executed a cheque to
Waleed Al-Khateeb, the payee, in the amount of Jordanian
Dinar (JOD) 7,587 (equivalent to US $10,707) written in
words.34 However, the amount of the cheque was
JOD7,578 (equivalent to US $10,695) in numbers. Later
on, Waleed presented the cheque for payment to the
Housing Bank for Trade and Finance. The Housing Bank
for Trade and Finance refused to accept the cheque
26
Jordanian Code of Commerce No.12 of 1966.
Jordanian Code of Commerce No.12 of 1966 art.148. See Court of Cassation, Case No.601/1988, Journal of Bar Association (1988).
28
See Jordanian Code of Commerce No.12 of 1966 art.149.
29
Jordanian Code of Commerce No.12 of 1966 art.245. See Court of Cassation, Case No.2266/2001, Adaleh Publications (2001).
30
This practice is characteristic of the US cheque collection system. It is reflected in the rules of UCC art.4 concerning the entry of provisional settlements as cheques are
forwarded for collection. See William F. Savino and David S. Widenor, “Commercial Law” (2007) 57 Syracuse L. Rev. 837, 856.
31
See Jordanian Code of Commerce No.12 of 1966 art.260.
32
Jordan adopted an electronic collection for cheques. The purpose of this system is to eliminate the physical movement of paper. Also, the electronic collection of cheques
is intended to speed up the cheque collection process and to expedite the availability of funds to depositors. The depository bank, instead of physically sending a cheque
for collection, simply forwards a computerised image. See “Jordan Starts the System of Electronic Collection of Checks” (February 2008) Vol.27 Banks in Jordan Magazine
34.
33
See UCC § 3-114 (2005).
34
See Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
27
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Contradictory Terms in Cheques: Formalism and Practice 35
because of the difference between words and numbers.
Waleed filed suit in Amman Court of First Instance on
June 13, 2013 against the drawer and the Housing Bank
for Trade and Finance.35 The Court of First Instance ruled
in favour of Waleed.36 The Court of Appeals reversed.
The court reasoned that the Instructions of the Central
Bank No.23 of 1971 and their amendments permit banks
to refuse to accept a cheque for irregularities. Also, the
Court of Appeal based its decision, in part, on Egyptian
jurisprudence.
The Court of Cassation rejected the argument made by
the Court of Appeal. The Court of Cassation stated that
the Instructions of the Central Bank No.23 of 1971 and
their amendments apply to relationships among banks
and do not address the relationships between banks and
their customers.37 Therefore, the Court of Appeal erred
in basing its decisions on the Instructions of the Central
Bank.
The Court of Cassation stated that the cheque in
question is unclear and ambiguous as there is a difference
between words and numbers. The court found that words
prevail over numbers on the basis of the presumption that
by writing out numbers, more care has been taken to make
sure the right term has been used.38 The Court of Cassation
drew a parallel to earlier precedents to support its position
that words prevail over numbers.39
Analysis
The law in Jordan does not address the case whereby the
amount of the cheque as written out is different from the
amount stated in numbers. The practices of banks varied
when faced with a cheque that has conflicting terms.
Some banks refuse to accept the cheque if the amount
written in words is different from the amount written in
numbers.40 So, banks send such a cheque to the drawer
for correction. Other banks accept a cheque whereby
words differ from numbers. However, in the latter case,
these banks pay the lesser amount.41 For example, suppose
a cheque is made for JOD22,000 in numbers and for
JOD2,200 in words. In this case, banks would pay the
JOD 2,200 since it is obviously the lesser amount. Also,
if the cheque is made for JOD2,200 in numbers and for
JOD22,000 in words, banks would pay JOD2,200 since
it is the lesser amount. In sum, banks would pay the lesser
amount in the cheque whether it is the written words or
numbers.
The Court of Cassation saw in Waleed’s case an
opportunity to settle the question of contradictory terms.
The foundation of the Court of Cassation decision is
instructive. There is no clear text in the law that would
guide the court in making its decision. Code of Commerce
art.3 provides the court with the authority to resort to
judicial precedents and reasoning if the law is silent.
The Court of Cassation provided a well-reasoned
decision when it announced that in case of contradictory
terms words prevail over numbers. In writing out
numbers, more care has been taken to make sure the right
term has been used. The Court of Cassation could simply
have referred to the practice and custom of banks. The
notion of interpreting terms by referring to custom or
practice is not alien to Jordanian law. In order to achieve
uniformity and consistency with respect to cheques law,
the court entertained a discussion of why words should
prevail over numbers. The court tried to harmonise
divergent practices of banks with regard to contradictory
terms.
Thus, the test that emerged from Waleed’s case is
instructive. The court did not, for example, leave it to
banks to determine whether to accept a cheque with
contradictory terms for the lesser amount, larger amount,
pay according to words, or pay according to numbers. In
fact, the court’s test is clear. If contradictory terms exist
in a cheque, then according to the court, words should
prevail over numbers.
In so ruling, the Court of Cassation could have referred
to the laws of other countries such as the US. In the US,
there is an explicit provision concerning the issue of
contradictory terms.42 However, the Court of Cassation
did not refer to foreign laws and jurisprudence as the
Court of Appeal did. The reason for the approach adopted
by the court could be attributed to the fact that Jordanian
law does not create significant externalities. Many in
Jordan would resist the temptation to apply foreign laws
into domestic legal issues. Domestic courts should address
only local matters. Foreign laws are written for different
environments or circumstances that do not necessarily fit
well in Jordan. For the moment, however, the Court of
Cassation believed that local jurisprudence suffices to
solve local matters.
Legislative solutions
The decisions of the Court of Cassation make it clear for
banks that in case of contradictory terms in a cheque,
words prevail over numbers. However, banks in Jordan
35
The Judiciary branch in Jordan is divided into three categories: regular courts, religious courts, and special courts. Regular courts, Nizamiyya, have jurisdiction in all
matters, including trade. Trade cases, if they are within JOD3,000 value limit, which is updated from time to time, could be heard before Courts of Peace, akin to small
claims courts in the US. Trade cases could also be heard before Courts of First Instance, Court of Appeal, and Court of Cassation which stands at the apex of the judiciary.
Currently there are 73 courts in Jordan. The Court of Cassation decides on matters of law or procedure. It could affirm the decision of the Court of Appeal, or remand it for
further reconsideration. See Jordan CONST. art.99. See also Law of Courts of Peace No.15 art.3.1, Official Gazette No.1102 (16 March 1952) as amended by Law No.13
of 2001, Official Gazette No.4480 (3 March 2001).
36
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
37
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
38
Court of Cassation, Case No.4010/2014, Adaleh Publications (20 December 2014).
39
See Court of Cassation, Case No.46/94, Journal of Bar Association 1789 (1994) (the cheque must be free of any ambiguity. Therefore, there is an ambiguity in a cheque
drawn for US $60,000 in writing and JOD60,000 in numbers).
40
See “Judicial Activism in Checks” (November 2005) Vol.24 Banks in Jordan Magazine 44.
41
“Judicial Activism in Checks” (November 2005) Vol.24 Banks in Jordan Magazine 44.
42
See UCC § 3-114 (2005).
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36 Journal of International Banking Law and Regulation
still follow their own practices and ignore decisions of
the Court of Cassation. In case of contradictory terms,
banks refuse to accept the cheque or pay the lesser
amount.43 Banks reason that in such a case, they assume
bad faith on the part of the drawer and desire to avoid
being entangled in litigation. The reasoning of banks is
all but flawed. Although conflicting terms of words and
numbers can be attributed to bad faith on the part of the
drawer, the conflicting terms could be the result of
mistake or negligence.
Reforming the law regarding contradictory terms seems
the viable solution. Any sound legislative solution must
address the customer right to know, before an account is
opened and periodically after it is opened, the general
policy of the institution with regard to cheques. Further,
the customer needs to be informed of the bank’s decision
to place a hold on any specific item. The law must also
restrict the opportunity for banks to vary their practices
by providing explicitly that words should prevail over
numbers in case of contradiction and provide an
appropriate penalty for violations.
The amendment of law with regard to conflicting terms
will help mitigate the burgeoning problem of returned
cheques in Jordan.44 Moreover, the amendment will
provide certainty for payees in the face of divergent court
decisions and bank practices.
Conclusion
The bulk of payments in the Jordanian economy are made
by cheques. Currency forms only a small portion of the
monetary system. In a sense, therefore, cheques are
considered currency substitutes. The viability of using
cheques in the payment system depends on the clarity
and consistency of the law, courts’ decisions, and banks’
practices.
The law, as currently stands, fails to provide
comprehensive rules for cheques. For instance, although
they were in use, there is no mention in the law of
cashier’s cheques or teller’s cheques. The uncertainty
with regard to contradictory terms in cheques not only
threatens to jeopardise the viability of cheques as an
integral part of the current payment system, but promises
to generate increased litigation.
The law on negotiable instruments was drafted more
than 60 years ago and is in need of revision. The law
should modernise language and take into account
technological developments and changes in business
practice. In addition, the revision resolves conflicting
lines of case authority. In sum, the law should promote
simplicity, clarity, and uniformity. To achieve these goals,
the law could have rules governing virtually all of the
commonly arising problems. Alternatively, the law could
contain rules general and flexible enough to permit courts
to shape predictable answers to unforeseen questions.
This generality could be achieved by incorporating an
element of judicial discretion into the rules. Without this
flexibility a court would not be able to stretch the rules
to accommodate unforeseen circumstances.
Courts’ decisions construing contradictory terms in
cheques are clear. For example, words prevail over
numbers whenever there is a conflict between them. These
decisions provide a sound rationale; by writing out
numbers, more care has been taken to make sure the right
term has been used. At first blush, these decisions seem
to solve the matter. However, the matter is far from
reconcilable and even raises bigger issues.
A court must explicitly state that its interpretation is a
general one and is not intended to be limited to the
specific facts of that case. Courts deciding cases must
hold that even if banks prove its conformity with local
practice, banks will have to follow courts’ jurisprudence.
When the law has been in force for a time, has been
interpreted in a series of judicial decisions, these decisions
themselves become part of the law complex: the meaning
of the law must now be sought not merely in the legal
text but in the law and the cases that have been decided
under it.
The failure of banks to embrace courts’ decisions
should be taken not as proof of satisfaction with the
present law but as a clear demonstration of disregard to
courts’ jurisprudence. Unless there is a re-evaluation of
basic concepts, the rationalisation of payment systems
law will continue to be an elusive goal. Until the
Government acts, courts should continue to construe
cheques in light of their jurisprudence.
43
Telephone Interview with Khaled Badawi, Branch Manager, Amman-Arab Bank (11 November 2014).
See Ali Shaheen, “Returned Checks in Jordan and the Role of Monetary Policy and Banking Management in Addressing the Issue” (2003) Vol.6.2 Irbid Journal for
Research and Studies 65, 70 (the number of returned cheques in Jordan is increasing). See “The Central Bank Issues Instructions of the Returned Checks Unit” (July 2005)
Vol.24 Banks in Jordan Magazine 16–18 (On 4 August 2005, the Central Bank of Jordan issued the Instruction for the Unit of Returned Checks in order to minimise the
phenomenon of returned cheques). See also Isam Qadamani, “Bounced Checks” Al Ra’I Newspaper, 20 April 2008 (the percentage of bounced cheques in Jordan reached
76%).
44
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