If a debtor informs their creditor that the remission is a final payment, the latter must express their refusal to the debtor before cashing the cheque.
Can a debtor be released from his obligations by sending his creditor an amount less than the amount claimed, while indicating that cashing the check constitutes a final payment?
A tenant, after signing a five-year lease, agrees with his landlord to terminate the lease early for an agreed sum. After the mortgage creditor has withdrawn the landlord's authorization to collect rent and notified the tenant of the withdrawal of rent collection, the landlord and tenant agree to reduce the agreed sum by half.
The tenant complies, remits the new agreed sum to the mortgage creditor, and notifies him that this remittance constitutes a final payment. The creditor responds by fax on Thursday at 3:55 p.m. that he will cash the check on Monday after 11 a.m. while reserving the right to sue.
The Court* concludes that the creditor, before cashing the check, had to communicate his refusal to the debtor. He had to give him the chance to stop payment of the check. A 15-day period should not be considered the norm, as each case must be studied on its merits. "In this case, the short period of 27 hours is clearly insufficient" and cashing the check releases the tenant.
It is always good to remember what Herodotus said: "Haste is the mother of failure".
*C.A 500-09-007218-985, 2001-11-12
