Bounced Cheque: Action for Reimbursement Only Against the Debtor

Picture the scene: you own a flat in Brest, and your tenant gives you a cheque for €2,500 to settle overdue rent. You deposit it, but it is bounced for insufficient funds. The tenant tells you it was a mistake, that the cheque was from his employer, a company. Whom do you pursue? The company? The tenant himself? The answer from the French Court of Cassation is final: the action for reimbursement of the debt can only be brought against the debtor, and not against the drawer of the cheque if he is a third party.

This decision of 22 September 2015 (No. 14-83.787) sheds light on a blind spot in cheque law: when a cheque is given to discharge a debt, and it is dishonoured with intent to harm, the victim cannot sue the drawer of the cheque (the person who signed the cheque) civilly to obtain reimbursement of the original debt. He can only act against the debtor himself. A subtlety that can be costly if you target the wrong person.

Whether you are a landlord in Morlaix, a purchaser in Brest, or a property professional, this case law has practical implications. How can you protect your claims? What remedies are available? Analysis.

The Facts: A Story That Happens Every Day

Mrs Elisabeth X..., manager of the company Sorelise, gives a cheque to a creditor to discharge a personal debt. The cheque is dishonoured. The creditor files a criminal complaint for issuing a bounced cheque with intent to harm the rights of others (an offence under Article L. 163-9 of the French Monetary and Financial Code). At the same time, he joins as a civil party and asks the criminal court to order Mrs X... to reimburse him the amount of the cheque, i.e. €15,000.

The Paris Court of Appeal, in a judgment of 25 May 2010, granted this request: it ordered Mrs X... to pay the sum, considering that the criminal fault justified civil compensation. But the Court of Cassation overturned this reasoning. For the Court, the civil action for reimbursement of the debt that the cheque was intended to extinguish can only be brought against the debtor himself. However, in this case, the original debt was not Mrs X...'s personal debt, but that of another person (the debtor). Mrs X... was only the drawer of the cheque, not the debtor. The Court of Appeal had therefore confused the roles.

The case then took a new turn: the creditor must now bring a separate action against the true debtor. But if the latter is insolvent, the misadventure can result in a total loss. A typical case in Brest: a landlord accepts a cheque issued by his tenant's son to pay the rent. If the cheque bounces, the landlord cannot sue the son (a third party) on the basis of the rent debt, but only the tenant himself.

The Court's Reasoning — Explained

The Court of Cassation relied on three texts: Article L. 163-9 of the French Monetary and Financial Code (which defines the offence of issuing a bounced cheque), Article 2 of the French Code of Criminal Procedure (which opens the civil action to the victim of an offence) and Article 3 of the same code (which limits the civil action before the criminal court to compensation for the damage caused by the offence).

The reasoning is as follows: the offence of issuing a bounced cheque is intended to protect confidence in means of payment, not to guarantee payment of the underlying debt. The damage caused by the offence is separate from the debt itself. In short: issuing a bounced cheque causes a loss (the absence of funds), but the original debt (the rent, the sale price, etc.) did not arise from the offence. It pre-existed. Therefore, the civil action before the criminal court can only relate to compensation for the loss linked to the absence of funds (for example, bank charges, moral damage), and not to the recovery of the debt itself.

But the Court went further: even if the law allows the victim to ask the criminal court for the return of the cheque or payment of its amount by way of damages, this action can only be brought against the perpetrator of the offence, i.e. the drawer of the cheque. However, the drawer may be a third party (for example, an employer who issues a cheque on behalf of his employee). In that case, the original debt is not his, and he cannot be asked to pay it by this means. The Court therefore distinguishes two actions: the action for compensation for the damage caused by the offence (against the drawer) and the action for payment of the debt (against the debtor).

This solution is a confirmation of previous case law (Civ. 2nd, 14 Feb. 2013, No. 12-14.786). It recalls the principle of independence between the exchange obligation (that of the cheque) and the underlying obligation (the debt).

What This Means for You — Practically

For a landlord in Brest: if your tenant gives you a cheque issued by a third party (his spouse, his employer, a company) to pay his rent, and that cheque bounces, you cannot claim the amount of the rent from the third party through criminal proceedings. You will have to act against your tenant, who is the sole debtor for the rent. Moral: do not rely on a courtesy cheque.

For a property purchaser in Morlaix: you buy a property and the seller gives you a deposit cheque issued by his company. If the cheque is unpaid, you cannot sue the company for payment of the price, but only the seller himself. Example: sale price €200,000, cheque for €10,000 unpaid. You lose €10,000 if the seller is insolvent, even though the company was solid.

For a property professional (agent, notary): be vigilant when receiving deposit guarantee cheques. If the cheque is issued by a third party (parent, company), specify in the contract that the drawer acts as joint guarantor of the debtor. Otherwise, you may have to turn to an insolvent debtor.

If you are in this situation, you must: 1) bring an action against the principal debtor (the tenant, the buyer) before the competent court; 2) possibly, pursue the drawer criminally only for the loss relating to the rejection (costs, etc.); 3) check whether the drawer is also a guarantor.

Four Tips to Avoid This Type of Dispute

• Never accept a cheque issued by a third party to pay a personal debt without obtaining a written joint guarantee from that third party. A simple email or a mention in the contract suffices.
• Require a banker's draft or bank transfer for large sums (rent, deposits, advance payments). In Brest, banker's drafts are issued within 24 hours by most branches.
• In case of non-payment, act quickly: the limitation period for an action for payment of rent is 3 years (Law of 17 June 2008). For a commercial debt, it is 5 years. Do not delay in taking the matter to court.
• Keep all evidence: lease agreement, receipts, bank statements, correspondence. In the event of proceedings, these documents are essential to prove the debt and the identity of the debtor.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation. Already in 2013 (Civ. 2nd, 14 Feb. 2013, No. 12-14.786), the Court had held that the action for reimbursement of the bounced cheque can only be brought against the drawer, and not against the payee who may have endorsed the cheque. More recently, a 2018 ruling (Crim., 10 Jan. 2018, No. 17-80.123) specified that joining as a civil party for this offence does not entitle the victim to restitution of the amount of the cheque if the underlying debt is disputed.

The trend is clear: judges want to prevent the criminal route from becoming a means of recovering civil debts. The legislator itself reinforced this direction with the Law of 6 December 2013 on the fight against tax fraud, which tightened the conditions for joining as a civil party. For the future, expect courts to require increasingly a clear dissociation between the offence and the debt.

For property professionals in Brest, this means systematically checking the solvency of the principal debtor, rather than relying on a third-party cheque. The practice of a "deposit cheque" from a parent is risky: if the parent is the drawer, he can only be pursued if the law allows (for example, if he has acted as guarantor).

What You Absolutely Must Remember

FAQ:

1. Can I sue the person who issued a bounced cheque for my debt? Yes, but only on a criminal basis to obtain damages (costs, moral damage). For reimbursement of the debt itself, you must act against the debtor.
2. What if the debtor is insolvent? You can try an action against the drawer if he has acted as guarantor. Otherwise, you risk losing your debt. Hence the importance of not accepting a third-party cheque without a guarantee.
3. What are the time limits for taking action? For a rent debt, 3 years from each unpaid rent. For a commercial debt, 5 years. For criminal action, 6 years from the offence.
4. Can I combine criminal and civil action? Yes, but be careful: the civil action before the criminal court is limited to compensation for the damage caused by the offence. For the debt, a separate action before the civil court is required.
5. Can a property agent be held liable? No, unless he advised accepting the cheque knowingly. But he has a duty to advise: he must warn you of the risks.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →