by G. Bradley Hargrave, Esq.
The issuance of a check constitutes a promise by the drawer to the payee (as well as to any subsequent holder) that the drawer's bank will pay the amount indicated on the face of the check. In a typical sales transaction, this promise is freely given by the drawer in exchange for the receipt of goods or services. While the vast majority of such transactions are completed without incident, occasionally the drawer believes that he did not receive that which he expected to receive when he issued the check. In legal parlance, the drawer is claiming a "failure of consideration", and as such, is arguing that he is released from his liability to make payment. Ordinarily, the drawer will then order payment stopped on his check.
A stop payment order in the face of a total failure of consideration is an appropriate and convenient means of settling a dispute. Significantly, however, only a trier of fact may decide whether or not the drawer's claim is correct. The simple fact that the drawer's bank was obligated to comply with his stop payment order has no bearing whatsoever on the ultimate decision as to whether there was a total failure of consideration in the transaction.
Should the holder of a stop payment check elect to sue the drawer, he has the benefit of a significant advantage. The check itself is presumptive evidence that consideration was received by the drawer; that is, the burden is placed on the defendant/drawer to prove that he did not receive the agreed upon exchange. Moreover, in the event that the drawer fails to establish by a preponderance of the evidence that he received absolutely nothing in exchange for his check, he will be liable to the holder for any portion that he did actually receive.
