MASTER BUSINESS LAWYER

Semester 1
MODULE : DROIT PENAL DES AFFAIRES

THE SECURITY CHECK

Framed by:

Pr. RABHI TAOUFIK

Made by:

Ghanmi Omar
Eloirdi Halima

Academic year: 2021-2022

 SUMMARY

INTRODUCTION

CHAPTER 1: the legal framework of the guarantee check…………5

SECTION 1: the guarantee check a double incrimination……5

SECTION 2: The penal system of the guarantee check in the light

comparative law.............................8

CHAPTER 2: the guarantee check between risks and the

difficulty of proof..............................10

SECTION 1: the impact of the security deposit check on the world of

business...................................................10

SECTION 2: the difficulty of proof……………………………..14

CONCLUSION………………………………………………...16

BIBLIOGRAPHY…………………………………………….17

1
 INTRODUCTION

In the face of this white-collar crime, a new branch of criminal law is

appeared under the name "Business Criminal Law".
Business is the world of money and especially of cash.
the whole of financial and economic activities is simply money.
Sometimes one can say that business is a world of lies, but in a
A positive vision is a world of investment that can create wealth.
"Business and criminal law have never been ignored" (R. Vouin in 1970)1, their
rencontre était inévitable, la consécration d’un droit pénal des affaires était en 1935
due to a change in economic design and the need for a
protection of several activities in various fields, notably activities
commercial, industrial, and agricultural.
So, business criminal law is a fairly recent concept; it is the criminal law that
applies to the business world that incriminates and punishes any violation of order
financial, economic and social. For example, theft, fraud, abuse.
trust, tax or customs fraud...
Payment instruments aim to simplify and accelerate the transfer of
funds while avoiding the handling of cash. It essentially concerns the
cash, checks, transfers, bank cards, and electronic money.
The theme of our presentation revolves around the check, which remains the instrument of
most used payment. Moroccan commercial code mentions the check in the
articles 239 and following but does not provide any general definition. In the
combination of these articles, it follows that the check is a written instrument by which a
person, called "shooter", gives the order to a bank (or a credit institution)
(assimilated), referred to as "drawn", to pay on sight a sum of money for the benefit of a third party.
person called 'bearer'2.
It is subject to regulation by the D.O.C in its articles 325 to 334. These
Articles were repealed by the dahir of January 19, 1939, to adopt the uniform law.
annexed to the Geneva Convention of March 19, 1931 concerning checks. But this
The dahir had not been integrated into the commercial code like that of the letter about

1Giudicelli-Delage,Geneviève,Droit pénal des affaires Ed. 6, Dalloz, 2006.

2Piedelièvre, Stéphane,Instruments de paiement et de crédit Ed. 10,Dalloz, 2018

2
change and the promissory note. The new commercial code of 1996 eventually incorporated
the latest being the legislation on checks which was contained in the dahir of 1939 in its
articles 239 to 328 with very significant modifications, especially in
criminal law.
The offenses related to checks are more numerous; we can mention: the offenses
of a bounced check, acceptance or endorsement of a forged check or
counterfeit...
What concerns us is the offense related to the check as a guarantee. Thus, the
The concept of a guarantee check does not exist in Moroccan law.
Legally, the guarantee check is obviously illegal. The law
severely sanction those who issue or accept a guarantee check.
Article 316 of the commercial code and Article 544 of the penal code are clear.
As well as on a practical level, whether they are traders or not The traders
they use it as a guarantee tool, even if the latter should only be used as
what means of payment. This is how the guarantee check has become a
phenomenon that threatens the monetary policy of the State due to the creation of a
fake currency and it is of no use for true wealth.
The issuer is supposed to have the provision in their bank account. Yet this
practice is very common among several establishments (rental agencies of
cars, private clinics, etc.) which also require the check to be signed, made out to
bearer and undated, which exposes the issuer to great risks.
It was previously mentioned that the security deposit check is considered as a
Infraction in Morocco, it is the same for Egypt. The Egyptian commercial code
Since 1999, the acceptance of guarantee checks is not independently provided for.
but it associates acceptance with knowledge and perfect understanding and
complete absence of provision.
Unlike French law, issuing or accepting a check is not at all
an offense, nor even a misdemeanor. This is the case in Anglo-Saxon law.
French law considers the guarantee cheque as a deposit cheque on the
price. For example, in a deed or sales contract, if one of the parties gives a
The cheque as a guarantee, the sale is considered definitively concluded. Thus
that the guarantee check can also be considered as a deposit,
that is to say an amount paid allowing the buyer to reserve the business for a
certain time before making a final decision.

Therefore, the issue of our subject will revolve around the guarantee check, its
sanctions and their risks. So the pertinent question that arises is as follows:

3
What are the sanctions imposed by the Moroccan legislator, and what are they
risks arising from its practice?

To better understand the idea, we will first address the legal regime of
guarantee check (CHAPTER 1), and then the guarantee check between the risks and
the difficulty of proof (CHAPTER 2).

4
CHAPTER 1: the legal regime of the guarantee check
The check is exclusively a payment instrument that meets a
very strict regulation, however the security deposit remains a tumor in the
society that must be uprooted. Although the latter is considered as a
infraction committed by the parties (the sender/receiver) in Morocco (section 1)
it still exists, not only in Morocco, but also in other countries. Good
Of course, each country has its own rights and its own laws, so it is necessary to...
savoir le système pénal du chèque de garantie à la lumière des droits comparés
(section 2).

SECTION 1: The guarantee check: a double incrimination

Once a check is issued, it represents a claim in favor of the one who issued it.
holds, regardless of the circumstances. As soon as it is signed and given to its
beneficiary, it must therefore produce its legal effects.
The two main parts we will focus on are indeed the
the drawer and the recipient, in other words "the issuer" and "the accepter". We will
briefly summarize these two terms in order to better understand them.
Firstly, we have the shooter who is also the one who materially creates the
title and who hands it over to a beneficiary in order to extinguish a debt3.
In a second instance, the good faith beneficiary must justify their right.
by an uninterrupted chain of endorsements. It is said to be diligent when it presents
the payment instrument within the legal deadlines that apply. In case of non-
payment, the bearer may exercise recourse against all signers. He
it refers either to a person named in the case of a nominative check, or to a
person named or to their order in the order check, or finally in the check
to the bearer4.

There is also a 3thperson who is the trustee holding funds belonging

to the shooter, the target cannot be just anyone since unlike the
the bill of exchange the check can only be drawn on a banking institution5, having
at the time of the creation of the fund title at the disposal of the drawer in accordance with
an express or tacit agreement under which the drawer has the right to dispose of his
funds by check. Paragraph 2 of Article 241 specifies that 'must be understood by'
banking establishment all credit institution.
The guarantee check is a very common practice in Morocco, and it is prohibited by the
law in two texts namely article 316 of the commercial code and article 544 of
The penal code is a system of sanctions that is dual.

3Michel Jeantin, commercial law, payment and credit instruments, distressed businesses, Dalloz Delta, E 4,
1995, p 8
4Ibid p 14
5Article 241 Paragraph 1 of the Commercial Code
5
The security check is a check given for a purpose other than the one intended.
by the legislator it is used as a credit instrument because in
In principle, the check is a means of payment on demand, a payment instrument, this
which differentiates it from the bill of exchange. It refers to any check with the intention
the parties' commune should not be presented for immediate payment or should not be.
that has a determined date. Thus, the acceptance of such a check is equivalent to a kind of
in advance of the amount stated on the check granted by the beneficiary for the benefit of
The shooter is required to set aside the provision at the agreed time.6.
Legally, the guarantee check is an illegal act; any guarantee check
presented for payment before the agreed date is considered unpaid due to insufficient
provision. The issuer in this case may find themselves in an embarrassing situation.
It is for this reason that the legislator severely punishes in article 544 of the code
The issuer and the recipient of this check are penalized, as it provides: "Is punishable by penalties
stated in the first paragraph of article 5407from one to five years in prison, and a fine
from 500 to 5,000 DH without the fine being less than the amount of the check,
Anyone who issues or accepts a check on the condition that it is not cashed.
immediately but retained as collateral. These legislative provisions
come to fill the legislative gaps at this level, because the check is
considered more as a means of payment than credit and also as a
formidable pressure tool that the creditor has over the issuer in case of non-
payment8.
On the other hand, article 316 of the commercial code in paragraph 6 provides
that: "any person who, knowingly, agrees to receive or
to endorse a check on the condition that it is not cashed immediately and that it
to be kept as a guarantee a prison sentence of one to five years and
a fine of 2,000 to 10,000 dirhams without this fine being less than
twenty-five percent of the amount of the check. Here the sanction targets only the
beneficiary for the acceptance of the guarantee check and the issuer for another at
to know the issuance of a check for which the funds are nonexistent or insufficient.
The Moroccan Court of Cassation has been decisive regarding the
decriminalization of the offense of the guarantee check at least on the part of the drawee, that is how it is
in its landmark ruling delivered in a joint session of two chambers on 29/05/2005, it has
confirmed the implicit abrogation of the provisions of article 544 of the penal code by the

6[Link] 27/10/2021
7Article 540: Anyone who, in order to obtain or to provide to a third party, an illegitimate financial profit, induces
deviously misleading a person with fallacious claims, or by concealing true facts, or
cleverly exploit the mistake where a person was and thus determine them to actions harmful to their interests
Those who are guilty of fraud involving monetary issues or those of a third party are punishable by imprisonment for one to five years and a fine.
from 500 to 5,000 dirhams
826‫ﻱﻥﻝ ﻛﺮﺓﺫﻡ‬
‫ﺭﻟﻤﺎﺳﺖﺍ ﺩﺓﻫﺎﺵﻝ‬، ‫ﺍﻝﺩﺍﻙﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﻉﺭﻱﻟﺘﺶﺍ ﺑﻴﻦﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ‬، ‫ﻟﻘﻀﺎﺋﻴﺔﺍ ﻟﻤﻤﺎﺭﺳﺔﺍﻭ ﻉﻭﺍﻕﺍﻝ‬2012-2011 ‫ﺹ‬
6
articles 316 and following of the commercial code advocating in a specific case
particularly the retroactive application of the milder law9.

The Court of Cassation decided not to pursue criminal action against the issuer.
a signed blank check "as long as it is proven by expertise that the amount
it is supposed that the provision has not been set by him10.

For the commission of this offense, the meeting of two essential elements is
mandatory: a material element and a moral element.
The material element: is the acceptance of receiving or endorsing a check.
provided that it is not cashed immediately.
The moral element: the offense is the intention not to cash the check
immediately.
In this regard, a movement founded by Professor CHOKRI SBAII.11comes to strengthen the
position of the legislator who incriminates the offense of the guarantee check, which does not
do not consider that the provisions of article 316 of the commercial code have been repealed
those of article 544 of the penal code.
On the other hand, another approach adopted by Professors EL FAROUJJI and AL HARTI
who is advocating for the decriminalization of the guarantee check due to the utility of the check in
commercial transactions.
In other foreign legislation, some of them opt for the
pénalisation du chèque de garantie et autres qui partent à la dépénalisation de ce
last.

917197/95‫ﺍﺉﻥﺝﺍﻝ‬
‫ﻑﻝﻟﻢﺍﻱ‬2002 ‫ﻱﺍﻡ‬29 ‫ﺭﺩﺍﺹﺍﻝﻓﺘﻴﻦﺭﺑﻎ ﻳﺦﺑﺘﺎﺭ‬1263/6 ‫ﺭﺭﺍﻟﻖﺍ ﺩﺩﻉ‬
10Consultthe guarantee check: The issuers protected by jurisprudence.
27/10/2021
113‫ﺏﺱﺍﻝﻱﺭﻙﺵ ﻣﺪﺡ‬
‫ﺓﺑﻊﻁ ﺑﺎﻁﺭﺍﻝ ﺓﺩﻱﺩﺝﺍﻝﻑﺍﺭﻉﻟﻢﺍ ﺓﻣﻄﺒﻊﻧﻲﻟﺜﺎﺍ ﺯﺀﺝﺍﻝ" ﺓﻱﺍﺭﺝﻟﺖﺍﻕﺍﻷﻭﺭﺍﻱﻑ ﻁﺳﻲﻭﺍﻝ "ﻱﻉﺍ‬2010 ‫ﺹ‬
7
SECTION 2: The penal system of the guarantee cheque in light of the law
compared

French legislation was chosen as a model from European legislation.

given the historical relations that unite Morocco to France at the level
political and economic.
French legislation being a major source of Moroccan legislation in the
matter, whether in the penal code or the commercial code. But that is not the case
for our topic, French law is not against the security check, whereas, in
Egypt, the Egyptian doctrine believes that the acceptance of a guarantee check will
transform the role of the payment tool check into a credit tool, (as the law
Moroccan) adding that the lack of awareness and ignorance of the constraints of this
practices will lead to harmful consequences for individuals paralyzed by
the need for credit.

We will address the positions of European legislation by studying the French model.
as comparative law of the subject.
The law "December 30, 1991"12has repealed the act of issuing a check without
provision13and replaced it with a civil penalty that obliges the payer to make the payment
a fine and preventing it from issuing new checks.
The guarantee check is only an arrangement between the parties that, by
its simplicity retains a real appeal in practice, from which it is not
considered as an offense in France. For Christian Gavalda and Jean
Stoufflet, "a check cannot of course fulfill a credit function"
» 14and Michel Juglar warned that a deposit check "does not bear any
guarantee for the creditor15.
Mr. Ahmed CHOKRI SBAII explains that French legislation has
decriminalized the guarantee check due to the complexity of the offense of its presentation and
the spread of its use16.
Among the provisions that state that a check is a means of payment is that
The beneficiary can present it for payment, even if it is given to him as collateral.

Moreover, French legislation does not sanction, according to the 1991 law, the act of
to accept the check without funds, this crime is committed with criminal intent,
represented in the act of voluntarily accepting a check as a guarantee without
provision after its issuance, in order to harm or prejudice the issuer. Except that the
12Law no. 91-1382 of December 30, 1991, official journal of the French Republic of January 1, 1991.
13Christian GAVALDA and Jean STOUFFLET, 'Commercial paper, checks, payment and credit cards', Litec-
Paris, 3rd edition, 1998, p 306.
14HESPRESS/ Christian GAVALDA and Jean STOUFFLET, [Link]., P 206.
15HESPRESS/Michel JUGLART and Benjamin IPPOLITO, [Link]., P 242.
16
‫ﻋﻲﻟﺴﺒﺎﺍﻱﺭﻙﺵ ﺃﺣﻤﺪ‬، “‫ﺟﺎﺭﻳﺔﺕﺍﻝﻕﺍﻷﻭﺭﺍ ﻓﻲ ﻟﻮﺳﻴﻂﺍ‬/‫ﻱﻟﺜﺎﻥﺍ ﻟﺠﺰﺀﺍ‬: ‫ﻑﻟﻮﺍﺕﺍﺃﺩﻭ ﺃﻭ ﺁﻟﻴﺎﺕ ﻓﻲ‬
‫ﺍﺀ‬: ‫”ﻷﺧﺮﻯﺍ ﺀﺍﻷﺩﺍﻝﻭﻭﺳﺎﺉ ﻟﺸﻴﻚﺍ‬، ‫ﻑﻟﻤﻌﺎﺭﺍ ﻣﻄﺒﻌﺔ‬
323‫ﺓﻟﺠﺪﻳﺪﺍ‬- ‫ﻟﺮﺑﺎﻁﺍ‬، ‫ﻯﻷﻭﺍﻝ ﻟﻄﺒﻌﺔﺍ‬1998 ‫ﺹ‬.
8
legislation still punishes the act of withdrawing the provision after the check is issued or
the act of accepting a bounced check after it has been issued, except that it
requires the assertion of the bad faith of the acceptor17.

According to French doctrine and according to Christian Gavalda and Jean Stoufflet,
in their work "Effects of Commerce" that the acceptance of a check to
condition that it is held as collateral may constitute a criminal practice,
which is unfortunately present in society, and that the check cannot be
un moyen de crédit. En revanche Reed Business Information, spécialisée dans la
dissemination of legal and economic information to the public, it is admitted that "
the guarantee check has become admissible, that is to say the beneficiary has the
right to submit the check for immediate payment, even if he commits to
do not do it.
For jurisprudence, on its part, a ruling of the French Court of Cassation in 22-
09-2015 N14-17.90118regarding the cashing of a check of
guarantee. A brief summary can be given about this matter. It concerns a
issuer of a non-dated check of 500,000 euros which he had given to his beneficiary
in guarantee of a loan of the same amount. The loan has not been repaid, so the
The beneficiary wrote the date, then he submitted the check for payment after two years.
since its creation. The issuer opposed paying the check, considering that
the subsequent placement of a false date with the aim of allowing its presentation to
payment without limitation of duration and in order to avoid the prescription constituted
fraudulent use, knowing that in another case law it has already been judged
that a check given as a guarantee does not constitute an offense.
Furthermore, if the check must contain the indication of the date of its creation, the Court of
cassation ruled that, even if postdated, it produces the effects of a check. It follows that
therefore, the deposit of a post-dated guarantee check does not constitute
not in itself a fraudulent use justifying the opposition.

Speaking of comparative law, we can briefly mention Tunisian legislation which,

as for her, does not prohibit the existence of the security deposit check. Indeed,
No text prohibits the issuance and acceptance of a guarantee check. Let's recall
that Tunisian law and case law enshrine the general rule of
the strict interpretation of criminal law by applying the general principle of legality
of offenses and penalties. No offense, no penalty without law19.

17 26‫ﻛﺮﺓﺫﻡ‬
‫ﺭﻟﻤﺎﺳﺖﺍ ﺩﺓﻫﺎﺵﻝﻱﻥﻝ‬، ‫ﺍﻝﺩﺍﻙﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﻉﺭﻱﻟﺘﺶﺍ ﺑﻴﻦﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ‬، ‫ﻟﻘﻀﺎﺋﻴﺔﺍ ﻟﻤﻤﺎﺭﺳﺔﺍﻭ ﻉﻭﺍﻕﺍﻝ‬2012-2011 ‫ﺹ‬
[Link]. 22-9-2015 n°14-17.901
19The Permanent Manual of Tunisian Business Law, Nov. 2008 P-5

9
 CHAPTER 2: the security check between risks and the difficulty of
Proof

The guarantee check threatens the health of commercial transactions by creating a

fake currency, which poses a very serious danger in society. Where are we going?
first address the impact of this phenomenon on the business world
by focusing on current issues, and secondly we will
revealing the difficulty of proving that a check is given as a guarantee
Moroccan jurisdiction (section 2).

Section 1: the impact of the guarantee check on the business world

Issuing and receiving a guarantee or security check is illegal in

Morocco, but which, unfortunately, still persists to this day in transactions.
commercial transactions between various parties. That said, the practice remains very common, well
Obviously, sometimes reality surpasses the law. We will keep an eye on several.
sectors where the use of the guarantee check has become essential, particularly
in the commercial sector, the health sector, and even rental agencies
cars.
Starting with the commercial sector where merchants prefer to use the
security check instead of the promissory note, particularly to ensure thus for
forcing the sender to pay the amount of the check. Undoubtedly, the rarity of complaints
against this practice, plus the difficulty of proving that the check is given as
guarantees are the main reasons that give the latter the privilege to use this
payment method as such20.
Currently in Morocco, many commercial sectors are resorting to this
pratique, du petit magasin de vêtement jusqu’aux célèbres marché du DERB GHLEF
from CASABLANCA, even among wholesalers (sellers of electronic devices,
household appliances, food products ...), as well as in gold jewelry stores.
etc... It can be said that the check in Morocco, more precisely among merchants
is used as a means of guarantee and nothing more.

2026‫ﻛﺮﺓﺫﻡ‬ ‫ﺭﻟﻤﺎﺳﺖﺍ ﺩﺓﻫﺎﺵﻝﻱﻥﻝ‬، ‫ﺍﻝﺩﺍﻙﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﻉﺭﻱﻟﺘﺶﺍ ﺑﻴﻦﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ‬، ‫ﻟﻘﻀﺎﺋﻴﺔﺍ ﻟﻤﻤﺎﺭﺳﺔﺍﻭ ﻉﻭﺍﻕﺍﻝ‬2012-2011 ‫ﺹ‬
10
It should be specified that not only those who use it in this way, even the big ones
companies resort to this practice terribly.
The traders provide various justifications for this illegal practice, they
they think that this will be an excuse for them and even exonerate them from the
criminal liability21.

To be honest, there is a certain type of merchants who are totally convinced.

by using the check as a means of guarantee, and it has become a rule
regular in the business world.
Moving on to the most important sector, THE HEALTH SECTOR. Within the
care facilities. Some of them require not just a check for
guarantee, but require it to be signed, undated and made out to bearer22.
This practice has become increasingly dangerous, especially during this time when
the whole world is facing this pandemic 'COVID-19', hence some clinics
Private providers request the security deposit check even before taking care of the patient,
In other words, even before providing any form of care to patients and in the absence of
to have information regarding the affiliation of their future "clients" to a
health insurance, these clinics require blank or guaranteed checks
counterpart of staggering sums, to the great misfortune of patients,
especially at a time when greed and the race for profit should make way for
human values and the duty to save lives.23
These establishments, accused of profiting from the crisis, demand the submission of acheck of
guaranteeof the-60,000 dirhamsbefore the hospitalization of the patients.

Citizens have made their voices heard on social media, denouncing the use
current of this practice by private care structures. This controversy had
spawnedthe reaction of Khalid Aït Taleb,Minister of Health. The latter had
reminded that from a legal standpoint, in accordance with article 75 of law 131.13 related to
in the practice of medicine, "it is prohibited for the clinic, in the case of third-party payment, to
ask insured individuals or their beneficiaries for a cash guarantee, by
check or any other means of payment outside of the portion remaining for their responsibility

"And to add that this practice is the result of the absence of a system"
electronic device allowing access to the data held by companies
insurance to know whether the patient is insured by a company or not. Note that

2126‫ﻛﺮﺓﺫﻡ‬ ‫ﺭﻟﻤﺎﺳﺖﺍ ﺩﺓﻫﺎﺵﻝﻱﻥﻝ‬، ‫ﺍﻝﺩﺍﻙﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﻉﺭﻱﻟﺘﺶﺍ ﺑﻴﻦﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ‬، ‫ﻟﻘﻀﺎﺋﻴﺔﺍ ﻟﻤﻤﺎﺭﺳﺔﺍﻭ ﻉﻭﺍﻕﺍﻝ‬2012-2011 ‫ﺹ‬
22[Link]
23Guarantee check: stop the bleeding! By SARA OUZIAN
11
in order to respond to the outrage and complaints of Moroccans, the ministry
The Ministry of Health has made available to them a complaint portal called Allo Chikayati.
The objective is to penalize offenders in case of violation through the Order of
doctors, waiting to find a viable solution to the illegal practices of
certain private clinics.24

On the other hand, Professor Redouane Semlali, President of the national association
private clinics (ANCP) expressed support for this guarantee instrument
of payment during a media outing "certainly, it is an act prohibited by law but
which greatly facilitates the admission of patients in very serious situations
adding that "the clinic directors are always trying to find a solution
with the patient or their family to settle the file.
And to escape the criminal penalty, "some clinics cash the check.
immediately, he noted, adding that some checks are made out to
benefit from nominees in order not to be reported to the tax authorities.

However, these subterfuges are merely a reckless escape in the face of citizens' rights.
to receive dignified care at reasonable prices, while allowing clinics
to cover their costs and generate a profit like any business," pointed out Mr.
Arji, also president of the Business Support Commission of the Chamber
French Chamber of Commerce and Industry of Morocco (CFCIM)25.

According to the law, "Any commitment arising from an abuse is deemed null by the force of the law.
weakness or ignorance of the consumer, who reserves the right to be
reimburse the amounts paid and be compensated for the damages suffered.26,
as stated in Article 59 of Law 31.08 on the protection of
consumers. The same article emphasizes the preservation of the right of
consumer who subscribed to a bond by exploiting their weakness or their
ignorance, to recover the amounts paid by himself and to compensate him for the
subsequent damages.

This situation applies to the case of citizens who are forced to submit to
security deposits to private clinics, given that the latter is in
position of strength, while the consumer is in a state of weakness.

[Link] ByKhansaa Bahra, Published on 07/12/2020 / Medias24

25[Link]
26Article 59 of Law 31.08 on the protection of consumers
12
In order to circumvent the issue of security deposits in patient relationships.
With private clinics, Al-Kharti called on the state to intervene and take charge.
40% of the treatment bill, with the patient covering the remaining 60%.27

Finally, we can quickly address the practice of the security deposit cheque used at
during a car rental, the owner requests a deposit of a check for
caution which will be used, if necessary, to repair any damages suffered by the property
rented (this can also be furniture / real estate). This check will be valid
immediately collected by the service provider, professional or individual28.

Indeed, the check remains a means of payment and the misuse that is made of it in the
The practice has not been validated by the courts.

27Hespress/‫ﻡﻝﺑﻖ‬ ‫ﻥﻟﻢﺍ ﺗﺤﺪﻯﻱ ﻃﺆﻭﺍﻟﺖﺍﻱﺝﺭﺍﺍﻝ ﺣﻤﺪﻡ‬

ُ ‫ﻥﻟﻀﻤﺎﺍﺕﺍﻙﻱﺵ" ﺑـﻝﻡﺍﻉﻟﺖﺍ ﺩﻡﺃﻝﻱﻳﻂﻭﻧﻲﻭﻥﻟﻘﺎﺍ ﻉ‬
28Practical sheet n74-Families of France-June 2015
13
SECTION 2: The Difficulty of Proof

The problem with the guarantee check is the difficulty of proving

that the check was given as a guarantee, which explains the limited number of
proceedings concerning him.

Although this evidence can be freely provided by all available means in

criminal matter, especially when it is based on simple verbal statements of the
complaining that the check was endorsed and accepted as a guarantee, while the
shooter in case of prosecution for the offense of issuing a check without provision in order to
pay the check when it is presented for payment, holds the receiver accountable for the fact
to accept the check as a guarantee.

In cases where the evidence has been established, the competent jurisdictions condemn.
in the case of non-existent or insufficient provision, the drawer for the offense of issuance
of a bounced check, and the beneficiary of the offense of accepting a check of
guarantee. In the event that the provision existed at the time of the check issuance,
the acceptor will be prosecuted for the acceptance of the check given as a guarantee and
the issuer for its issuance in accordance with the provisions of Article 544 of the code
penal.

The difficulty of proving the incrimination of the guarantee check persists in the
means used by the beneficiary to escape the provisions of the law on
the acceptance of the guarantee check.

According to Professor MOHAMED JAMAL MAATOUK: 'a blank check without

signature is not yet considered a means of payment. It is the
signature that proves you are the holder of a bank account and that you give
the order to your bank to carry out a transaction. This signature is the expression of
your personal and direct will to want to undergo a procedure. In its absence, it
there is no operation, and therefore this check cannot yet constitute a check of
guarantee. On the other hand, if the check is signed by you, we are indeed facing a
guarantee check, even if the amount is not written on it. You have given the order to
your bank to process the check payment and you have tacitly left the
possibility for the cheque beneficiary to add the amount, even though they do not have it
right, because the check must be correctly filled out and personally by the account holder
of account except for exceptions. In this case, your check may be considered as a
security check and you expose him as well as its recipient to the penalty provided for and by the
commercial code and by the Moroccan penal code29.

Regarding case law, the Court of Cassation in ruling no. 1343 Date
from 06/03/1996, specify: as long as the signature on the check is not disputed by the

29[Link] consult (27/10/2021).

14
shooter, the latter who indicates having signed it in blank and submitted it as collateral, must
bring evidence of one's claim.

So receiving and accepting a check in such a way that it is not cashed

later constitutes a criminal offense.

Another issue lies in the difficulty of proving bad faith.

beneficiary, in other words, the offense of guarantee check is an offense
intentional that relies solely on the existence of an agreement on non-cash receipt
immediate of the check, notwithstanding the existence of the provision at the time of issuance
or the maintenance of its existence until the agreed time for the presentation of the
title.

From this logic, there is an overlap between the offense of issuing a check without
supply and the guarantee check, where often the drawer is caught for an offense
to issue the check without funds, the beneficiary is acquitted of the offense of
the acceptance of the guarantee check based on the issue of the difficulty of proving the
bad faith of the latter.

So proving the bad faith of the beneficiary is a realistic problem for the authority.
judiciary, where this could be a claim from the drawer that the beneficiary
accept a check as a guarantee. This is a malicious act aimed at repudiating
the bearer and have him introduced into a circle of guarantee check crime, He
belongs to the court to search for clues that may help it achieve the
truth30.

As a result, the security check without an issuance date, or bears a date

later, like its connection with the loan date or the invoice that forms the basis of
this loan for which this check has been issued is considered proof of the fact that it
This is a guarantee cheque that allows the court to form its conviction on
this proof, and to convict the bearer for having agreed to receive the check
as a guarantee.

30 2015-2014,‫ﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ ﻣﺔﺭﻱﺝ ﺣﻮﻝﺭﺽﻉ‬، ‫ﺍﻝﺩﺍﻙ ﺑﺎﻁﺭﺑﺎﻝﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﺭﻭﻙﺏ ﻟﻤﺨﺘﺎﺭﺍ ﺭﻭﺕﻙﻟﺪﺍﻑﺍﺷﺮﺍﺕﺡﺕ‬
15
 CONCLUSION

In conclusion, the check is a payment instrument that is

payable on demand, and cannot be a means of credit. It is
sanctioned both by the penal code 'art 544' and the commercial code 'art 316'.
This opens a perpetual debate between two currents, those who advocate for penalization.
the guarantee cheque according to the penal code which penalizes both parties (issuer/
acceptor), and others only involve penalizing the acceptor according to
Article 316 of the Commercial Code.

Ultimately, the security deposit remains difficult to prove due to the ambiguity of.
its function and the complexity of its repressive system. In this regard, efforts have been made
permanently by case law in the face of this practice which constitutes a
tumor that needs to be removed.

16
 BIBLIOGRAPHY

WORKS
Michel Jeantin, commercial law, payment and credit instruments,
companies in difficulty, Dalloz Delta, E 4, 1995
Piedelièvre, Stéphane,Payment and Credit Instruments Ed. 10,Dalloz,
2018
Giudicelli-Delage, GenevièveBusiness Criminal Law Ed. 6Dalloz, 2006
‫ﻱﻉﺍﺏﺱﺍﻝﻱﺭﻙﺵ ﻣﺪﺡﺃ‬، “‫ﺓﻱﺍﺭﺝﻟﺖﺍﻕﺍﻷﻭﺭﺍﻱﻑ ﻁﺳﻲﻭﺍﻝ‬/‫ﻧﻲﻟﺜﺎﺍ ﺯﺀﺝﺍﻝ‬: ‫ﻓﺎﺀﻭﺍﻝﺍﺕﻭﺩﺃ ﺃﻭﺕﺁﻟﻴﺎﻱﻑ‬: ‫ﻟﺸﻴﻚﺍ‬
1998‫”ﻯﺭﺥﻷﺍ ﺀﺩﺍﻷﺍﻝﻭﻭﺳﺎﺉ‬، ‫ﺓﺩﻱﺩﺝﺍﻝﻑﺍﺭﻉﻟﻢﺍ ﺓﻣﻄﺒﻊ‬- ‫ﺑﺎﻁﺭﺍﻝ‬، ‫ﻯﻷﻭﺍﻝ ﺓﻃﺒﻊﺍﻝ‬

MEMORY
‫ﺭﻟﻤﺎﺳﺖﺍ ﺩﺓﻫﺎﺵﻝﻱﻥﻝ ﻛﺮﺓﺫﻡ‬، ‫ﺍﻝﺩﺍﻙﻣﺲﻟﺨﺎﺍ ﺣﻤﺪﻡ ﺓﻣﻊﺟﺎ‬، ‫ﻉﺭﻱﻟﺘﺶﺍ ﺑﻴﻦﻥﻟﻀﻤﺎﺍ ﻳﻚﺵ‬، ‫ﻟﻤﻤﺎﺭﺳﺔﺍﻭ ﻉﻭﺍﻕﺍﻝ‬
2012-2011‫ﻟﻘﻀﺎﺋﻴﺔﺍ‬

Legal texts

Law 15-95 forming the Moroccan Commercial Code

Law 24-03 forming the Moroccan Penal Code
Dahir forming the code of obligations and contracts

WEBOGRAPHY

[Link]
of guarantee
[Link]
by juriprudence/
[Link]
[Link]
guarantee-70995
[Link]
guarantee-stop-the-hemorrhage/
[Link]
[Link]
the-guarantee-in-clinics-or-not-is-prohibited/

17