My friend paid me with a check that bounced. He wrote a new check that included extra money to cover the fee I incurred from depositing the check.

He mentioned that due to new banking regulations, funds that he had deposited to cover the check were not available yet.

Q: If what he is saying is true, should I return the extra money he gave me to cover the penalty since it was not his fault?

A: The point that requires clarification is what principle, if any, can be applied to hold the issuer of the check liable for the fees the recipient incurred. Seemingly, the fees incurred were the indirect result of writing a bad check, and one of the most fundamental principles of Choshen Mishpat is that someone who indirectly causes a friend a loss is exempt – grama b’nizakin patur. However, there is a category of indirect damage which encroaches on the area of direct damage. This is known as garmi, and one is liable if he is negligent and causes garmi damage. For example, if Reuven agrees to meet Shimon out of town for a din torah but then skips the meeting, he is liable to reimburse Shimon for his expenses (C.M. 14:5).

Similarly, when someone issues a check, he is essentially informing the recipient that the check is good and can be deposited into his account. If the issuer was negligent and issued a check when the account did not have sufficient funds - or even if at the time the check was issued there were sufficient funds, but he later wrote additional checks, leaving the account without coverage for this check - he is liable to pay the fees the recipient incurs as a result of the bad check. Although one is liable for garmi damages that resulted from one’s negligence, one is not liable even latzeis yedei shamayim (beyond the letter of the law) for garmi damages that are a result of circumstances of oness (beyond his control) or shogeg (accidental) (Shach 386:6; see also Minchas Pitim 386:3).

In a case of oness or shogeg, if the issuer of the check decides on his own to pay the recipient because he feels that it is the proper thing to do, the recipient need not be concerned about the issuer’s misconception that he is obligated to pay. The reasoning is that since he paid without being asked, he indicates that he wants to do the “right thing” even if he is technically exempt from having to make a payment.

Similarly, in a case of oness or shogeg, it is prohibited for the recipient to ask to be reimbursed if that gives the impression that he is obligated to pay. If the issuer of the check voluntarily paid the recipient and mentioned that he feels halachically obligated to do so, it raises a question of whether the recipient must return the extra funds since it may involve mechilla b’taus (mistakenly forgiving a debt) or, in this case, paying due to an erroneous impression that he is obligated.

In your case, since the issuer already paid you in order to maintain his reputation as an honest person, you are not obligated to return the funds - even though your friend may have not been obligated to cover the bank fees (see Rivash cited in Ketzos 17:3, 75:4, 207:3).