# Would he be paying for the pot? A question of law. **URL:** \ **Category:** Factual Questions\ **Created:** [March 17, 2004, 12:42am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737 "2004-03-17T00:42:59Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![mangeorge](https://avatars.discourse-cdn.com/v4/letter/m/d78d45/32.png) [@mangeorge](https://boards.straightdope.com/u/mangeorge)\ **Post date:** [March 17, 2004, 12:42am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/1 "2004-03-17T00:42:59Z")
[In this story](http://www.oaklandtribune.com/Stories/0,1413,82~1865~2020650,00.html). "Martin made another argument: ‘If I was forced to pay those checks, your honor, I’d be committing a federal crime … I’d be paying for marijuana, which is a federal offense.’ " The checks had bounced, so isn’t the demand for making good the checks, not for payment for marijuanna? It’s my belief that whatever considerstion one receives for a check is a separate matter, and not germane to the value of the check. I assume this is a yes/no question. 😉 Peace, mangeorge ---
**Author:** ![JerH](https://avatars.discourse-cdn.com/v4/letter/j/bb73d2/32.png) [@JerH](https://boards.straightdope.com/u/JerH)\ **Post date:** [March 17, 2004, 2:36pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/2 "2004-03-17T14:36:06Z")
I think he has a choice of crimes, either: A - He is guilty of paying of drugs, or B - He is guilty of stealing drugs. Either way, he’s a criminal. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 17, 2004, 3:26pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/3 "2004-03-17T15:26:25Z")
IANAL etc. but it strikes me that he is seeking to enforce a contract. But the contract is illegal, and illegal contracts are by definition unenforceable. Dealers, this is why it’s so important for you to demand your payments in cash! Or sex. ---
**Author:** ![ReverseCowgirl](https://avatars.discourse-cdn.com/v4/letter/r/cc9497/32.png) [@ReverseCowgirl](https://boards.straightdope.com/u/ReverseCowgirl)\ **Post date:** [March 17, 2004, 4:34pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/4 "2004-03-17T16:34:14Z")
> [@mangeorge](#): > > [In this story](http://www.oaklandtribune.com/Stories/0,1413,82~1865~2020650,00.html). > "Martin made another argument: ‘If I was forced to pay those checks, your honor, I’d be committing a federal crime … I’d be paying for marijuana, which is a federal offense.’ " > The checks had bounced, so isn’t the demand for making good the checks, not for payment for marijuanna? It’s my belief that whatever considerstion one receives for a check is a separate matter, and not germane to the value of the check. > I assume this is a yes/no question. 😉 > Peace, > mangeorge He already paid for the pot with the check. Paying for drugs is not a separate crime. Possession is. Delivery is. Solicitation of delivery is. The check itself is sufficient evidence to put him away. ---
**Author:** ![mangeorge](https://avatars.discourse-cdn.com/v4/letter/m/d78d45/32.png) [@mangeorge](https://boards.straightdope.com/u/mangeorge)\ **Post date:** [March 18, 2004, 12:22am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/5 "2004-03-18T00:22:49Z")
Well shoot. I was sure I remembered something about a prostitute who was able to collect on a bounced check (in CA), even though the check was for illegal services. So paying for something illegal absolves you of the crime of kiting a check. Wierd. Picking a dealer’s pocket is a crime, and dangerous. And the dealer can get the money back. Saw it on tv. 😉 ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 18, 2004, 12:43am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/6 "2004-03-18T00:43:34Z")
No, paying with a bounced check doesn’t absolve you of _criminal_ liability. It doesn’t absolve you from civil liability either; the illegality of the contract does. ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [March 18, 2004, 12:46am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/7 "2004-03-18T00:46:39Z")
> [@Otto](#): > > IANAL etc. but it strikes me that he is seeking to enforce a contract. But the contract is illegal, and illegal contracts are by definition unenforceable. Dealers, this is why it’s so important for you to demand your payments in cash! Or sex. No, he’s not seeking to enforce a contract, but rather payment on a negotiable instrument. ---
**Author:** ![mangeorge](https://avatars.discourse-cdn.com/v4/letter/m/d78d45/32.png) [@mangeorge](https://boards.straightdope.com/u/mangeorge)\ **Post date:** [March 18, 2004, 1:04am UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/8 "2004-03-18T01:04:14Z")
> [@chula](#): > > No, he’s not seeking to enforce a contract, but rather payment on a negotiable instrument. That’s what _I_ thought. The contract was satisfied by the check. The check is another matter, another crime. I don’t think the person who received the check can take the goods or services that the check paid for, but can sue for the value of the check. Anyway, if he does collect the cops will surely seize the money. I eagerly 😉 await the judge’s decision. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 18, 2004, 1:15pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/9 "2004-03-18T13:15:54Z")
> [@chula](#): > > No, he’s not seeking to enforce a contract, but rather payment on a negotiable instrument. How is he not seeking to enforce a contract? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 18, 2004, 1:59pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/10 "2004-03-18T13:59:31Z")
> [@Otto](#): > > How is he not seeking to enforce a contract? Ok. If we are going to speculate about checks, we might as well look at the law. The law governing the enforcement of checks is the Uniform Commercial Code or [UCC](http://www.law.cornell.edu/ucc/3/). Article 3 is all about checks. A check is a negotiable instrument, which is: > [@](#): > > Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: > > (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; > > (2) is payable on demand or at a definite time; and > > (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor. Specificaly, it is an order instrument. When you give someone a check you negotiate it: > [@](#): > > § 3-201. NEGOTIATION. > > (a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. > > (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone. > > § 3-202. NEGOTIATION SUBJECT TO RESCISSION. > > (a) Negotiation is effective even if obtained (i) from an infant, a corporation exceeding its powers, or a person without capacity, (ii) by fraud, duress, or mistake, or (iii) in breach of duty or as part of an illegal transaction. > > (b) To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good faith and without knowledge of facts that are a basis for rescission or other remedy. Notice that 3-202(a) deals with illegal transactions. Negotiation is effective, but may be rescinded if it is permitted by other law. One question that comes up now is whether the marijuana seller is seeking payment on the check or whether the bank is. The seller is not a Holder in Due Course, but the bank probably is. If the seller is not trying to enforce the check, then illegality is probably not a defense. Against the seller, it probably is, but it is not because the seller is trying to enforce a contract. But because the UCC permits rescission of the negotiation under certain circumstances. There is, of course, an underlying contract–money for pot. That contract, is illegal and therefore, void. I hope this was at least slightly enlightening. ---
**Author:** ![chula](https://avatars.discourse-cdn.com/v4/letter/c/a4c791/32.png) [@chula](https://boards.straightdope.com/u/chula)\ **Post date:** [March 18, 2004, 7:49pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/11 "2004-03-18T19:49:58Z")
> [@Otto](#): > > How is he not seeking to enforce a contract? To be honest, I skipped the class on this subject so I wasn’t able to explain it properly. I was just trying to point the thread in the right direction and thankfully **Gfactor** came in with the cite. A negotiable instrument is, by definition, an unconditional promise, while a contract is essentially a conditional promise. **mangeorge** ’s explanation is correct; the contract was satisfied when the check was exchanged for the pot. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [March 18, 2004, 8:20pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/12 "2004-03-18T20:20:17Z")
OK, I get what you’re saying, but it doesn’t make sense. I realize the law isn’t required to make sense, but it’s always nice when it does. In the general, it makes no sense that a check presented with the intent not to honor can satisfy a contract. If nothing else, would that not constitute bad faith on the part of the presenter, which would constitute a breach? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 18, 2004, 8:30pm UTC](https://boards.straightdope.com/t/would-he-be-paying-for-the-pot-a-question-of-law/234737/13 "2004-03-18T20:30:59Z")
> [@chula](#): > > To be honest, I skipped the class on this subject so I wasn’t able to explain it properly. I was just trying to point the thread in the right direction and thankfully **Gfactor** came in with the cite. A negotiable instrument is, by definition, an unconditional promise, while a contract is essentially a conditional promise. **mangeorge** ’s explanation is correct; the contract was satisfied when the check was exchanged for the pot. I hated that class (Comm Trans) in law school, but my passing knowledge of the UCC has been one of my greatest assets as a lawyer. And yes, that is pretty much what I was saying. A check is an order to your bank to pay someone. It is offered as a settlement of a contract (that is, a payment), then the UCC provides for the consequences: > [@](#): > > § 3-310. EFFECT OF INSTRUMENT ON OBLIGATION FOR WHICH TAKEN. > > (a) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument. > > (b) Unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken, and the following rules apply: > > (1) In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check. > > (2) In the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in discharge of the obligation to the extent of the payment. > > (3) Except as provided in paragraph (4), if the check or note is dishonored and the obligee of the obligation for which the instrument was taken is the person entitled to enforce the instrument, the obligee may enforce either the instrument or the obligation. In the case of an instrument of a third person which is negotiated to the obligee by the obligor, discharge of the obligor on the instrument also discharges the obligation. > > (4) If the person entitled to enforce the instrument taken for an obligation is a person other than the obligee, the obligee may not enforce the obligation to the extent the obligation is suspended. If the obligee is the person entitled to enforce the instrument but no longer has possession of it because it was lost, stolen, or destroyed, the obligation may not be enforced to the extent of the amount payable on the instrument, and to that extent the obligee’s rights against the obligor are limited to enforcement of the instrument. > > (c) If an instrument other than one described in subsection (a) or (b) is taken for an obligation, the effect is (i) that stated in subsection (a) if the instrument is one on which a bank is liable as maker or acceptor, or (ii) that stated in subsection (b) in any other case. > [@](#): > > § 3-414. OBLIGATION OF DRAWER. > > (a) This section does not apply to cashier’s checks or other drafts drawn on the drawer. > > (b) If an unaccepted draft is dishonored, the drawer is obliged to pay the draft (i) according to its terms at the time it was issued or, if not issued, at the time it first came into possession of a holder, or (ii) if the drawer signed an incomplete instrument, according to its terms when completed, to the extent stated in Sections 3-115 and 3-407. The obligation is owed to a person entitled to enforce the draft or to an indorser who paid the draft under Section 3-415. > > (c) If a draft is accepted by a bank, the drawer is discharged, regardless of when or by whom acceptance was obtained. > > (d) If a draft is accepted and the acceptor is not a bank, the obligation of the drawer to pay the draft if the draft is dishonored by the acceptor is the same as the obligation of an indorser under Section 3-415(a) and (c). > > (e) If a draft states that it is drawn “without recourse” or otherwise disclaims liability of the drawer to pay the draft, the drawer is not liable under subsection (b) to pay the draft if the draft is not a check. A disclaimer of the liability stated in subsection (b) is not effective if the draft is a check. > > (f) If (i) a check is not presented for payment or given to a depositary bank for collection within 30 days after its date, (ii) the drawee suspends payments after expiration of the 30-day period without paying the check, and (iii) because of the suspension of payments, the drawer is deprived of funds maintained with the drawee to cover payment of the check, the drawer to the extent deprived of funds may discharge its obligation to pay the check by assigning to the person entitled to enforce the check the rights of the drawer against the drawee with respect to the funds. In other words, the pot seller can either enforce the check or enforce the original agreement. Since the check is unconditional and the contract is illegal. The seller’s best bet is to try to enforce the check. But that will depend on whether “other law” permits recission in this case.