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J.Hazelbaker, Attorney
Category: Business Law
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Experience:  Experienced and trained in the area of business law.
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I am an acupuncturist in the State of California. On occasion

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I am an acupuncturist in the State of California.   On occasion we have promotions and offer discounts on pre-paid packets for facial treatments.   The terms of the promotion are clearly stated and posted.
     One patient has an outstanding bill that he will only pay if we give him an outdated promotional rate.    He has written a check for slightly higher that the amount owed and states that if we cash the check we are agreeing to these terms. Thus giving him an additional eight treatments for less than half price.   His words were: "The check is consent."     Is this true?

If you cash the check you run the risk of creating a legal issue around the authority to do so. While the check was issued, it was given to you with stipulations. You don't have to agree to those stipulations, but they create ambiguity as to whether you have received authority to negotiate the instrument. Cashing it would likely create more hassle than it is worth.


To counter this situation, my strategy would be to send the customer a letter sent via certified mail with return receipt (so you can prove he got it) stating that you received his payment, that is was an overpayment, that only $__ was due for the following services, and that you will deposit the check to cover those services and refund the balance, unless you hear from him with a seven days (or whatever time period you choose).


If the person responds negatively, then return the check and demand payment or turn him over to collections. If he doesn't respond, document that fact and cash the check and return the balance to him.


Please let me know, if you have follow-up questions.



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