Where a cheque has been given in payment for construction work, may the paying party countermand it before it is honoured on discovering that the work is defective?
Discovering defective work after issuing a cheque tempts the payer to stop it. A cheque can be countermanded at the bank, but the law treats it as cash, so stopping it does not avoid liability on it, and any dispute is pursued separately.
A cheque can be countermanded at the bank, but stopping it does not avoid the drawer liability on it: a cheque is treated as a bill of exchange, as good as cash in hand, so the drawer cannot resist paying by arguing the work was worthless for want of consideration or by raising a counterclaim, as Isovel Contracts v ABB shows
No. A cheque is treated as a bill of exchange, as good as cash in hand, so stopping it at the bank does not release the drawer from liability: the drawer cannot escape paying it merely because the work later appears defective. In Isovel Contracts Ltd v ABB a cheque issued to a subcontractor was stopped after the value of the work was reduced up the chain, the drawer arguing that the work merited a nil valuation, but the court held that the drawer could not argue that the work had no value and so no consideration was given, nor use a counterclaim to avoid payment, and the cheque had to be met. Any dispute about the value or quality of the work is pursued separately, by a claim or counterclaim, while the cheque remains payment in its own right.
| Cheque as cash | Treated as a bill of exchange, as good as cash in hand |
| Stopping is no defence | Countermanding the cheque does not avoid liability on it |
| No no-consideration defence | The drawer cannot say the work was worthless |
| No counterclaim defence | A counterclaim cannot be used to avoid the cheque |
| Dispute separately | Value and quality are pursued by a claim or counterclaim |
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