The recent decision of the Magistrates Court of Tel Aviv (תא 047351/05 Yatir v. M.S. Lane) ruled what seems to be obvious: if a customs agent gives an open check to an international forwarder/ship agent for costs of shipping and releasing a certain cargo, this check may be used only for that purpose (releasing that cargo) and not for another purpose (paying other debts).
The problem lies not in the fundamental plane, but in the evidential plane: how can a customs agent prove that that open check was in fact intended to pay shipment and release costs for that specific cargo, and not to pay additional debts that exist between the forwarder/ship agent (or to pay additional debts of the customs agent to the forwarder)? Since the other party can always claim- you absolutely knew, and agreed, that the open check include everything.
True, the court ruled that in this case the forwarder did not succeed in proving that it had the right to obligate the customs agent for another debt, but if the balance is equal, the international forwarder stands to gain, since the burden of proof will rest of the plaintiff, and when the sum has already been collected by the customs agent, the plaintiff will be the customs agent, and the burden of proof will rest on him.
Thus it is clear that there is a need for a document that can clearly establish that the open check was intended for a specific purpose and not for other payment. One suggestion, that thrives in practice, is that the customs agent send a letter to the international forwarder, in which it is established that the transfer of the open check is done solely for the purpose of redeeming the transfer order for the cargo, and that the sum that may be filled into the check is only that which is required for the purpose of redeeming the transfer order for the specific cargo for which the check was given.
But this solution in practice may be problematic. If the letter involved includes specific details about that shipment, the accompanying letter may get "separated" from the check, and once again the check stands alone and the need arises again to discuss for which purposes it was given. If the letter involved is a general one that is given to the international forwarder ahead of time and which will cover all the check given in the future, a general letter like this, from its very nature, can not list specific shipments, and thus it will be impossible to link the letter and the check to that shipment.
We can suggest another solution that will prevent separation between the check and the specific purpose for which it was given. It's possible that this isn't known, but it can be noted on the check the basic transaction for which it was given. And not only is it possible to do so, it's even advisable! So writes Prof. Lerner, one of the experts in banknote law: "It is therefore advisable that those who write banknotes adopt the permission of the statute (=Banknote Statute) and address on the bill itself the transaction in which the note is drawn."
Accordingly, you can write on an open check a sentence phrased something like this: This check is intended for the payment of release costs for the cargo with cargo bill #___________ of company ____________. You can also write which costs the check will cover: Transfer order, shipping, etc.
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