What you need to know:
- Your question invites a conversation about contracts.
- Contracts are either written or unwritten.
- Legal minds refer to the former as express and the latte.
I have a friend who owes me money, but we did not have any official documents to show our transactions or that he would repay me. I would appreciate legal advice on how to approach the matter to get my money back. Thank you.
The fundamental question is whether this debt is a lost gamble.
The law is an equaliser that rewards and reprimands equitably. As a tool to reduce and deal with instances of conflicts such as yours, the law should be seen to be fair, creative and apt. To reduce or remove instances of prejudice, crafters of law design principles of practice that define and operationalise the fairness intended by it.
Your question invites a conversation about contracts. Contracts are either written or unwritten. Legal minds refer to the former as express and the latter is implied. Contracts that address land matters and real estate must be written, but any other can be verbal and still stand the test of law. Both written and unwritten contracts exercise equal execution degree of terms within the frame, and, therefore, exhibit the same legal force whether in breach or compliance. Yours is a classical model of unwritten contracts. Three issues emerge as critical in responding to your question. First, is to review the basics that qualify a contract of any nature; second, is to write about circumstances that construct an implied contract; and third is to examine dispute handling forums available to you, and the threshold required to facilitate recovery of your money.
Contracts are agreements between private parties made of specific terms which create mutual performable obligations within a specified time frame, whose non-compliance may invite the wrath of the law, upon invocation. An implied or assumed contract, is a legally binding covenant that originates from specific actions, conduct, behaviour, attitude and circumstances of the parties, to demonstrate the existence of commitments between them. Express contracts differ since they are written and likely signed by both parties, indicating their clear duties and rights. It can, therefore, be concluded that both contracts emphasise commitments by the parties who form and inform them.
Any contract has four important characters that are foundational and operational in design. One party must offer to agree, and the other party must accept the terms of the offer. In your case, the friend must have approached you with a request to borrow and a likely plan of repayment, for which you consented. There is a consideration, which is something of value received or promised that convinced you to agree— in this scenario, the money you lend. This is given legal force by parties’ contractual capacity, which is the qualification to voluntarily enter into a contract, defined by attributes such as the age of majority, adult of sound mind and believable decisions to remain faithful to the obligations set by the agreement. Further, is the legality of the subject from which the performable terms of the contract are drawn. It must not be against public policy.
Since this is an unwritten contract, three pathways are contextualised as mechanisms to recover the money. First, is to directly negotiate, if you have not, with the borrower to find consensus on the recovery plan. These could be WhatsApp chats, short messages (sms), M-Pesa delivery messages, emails, recorded telephone calls or face to face meetings. If possible, involve a third party in your conversations, who can stand in as your witness should the situation remain unresolved. This has a dichotomous purpose; to recoup the money, but important create evidence (if in the past none is available) and conversations that if reviewed would infer the existence of a breached loan agreement. Second, is to invite a mediator agreeable to both of you. The mediator’s role is to aid the parties to arrive at a debt settling plan. Thirdly, approach the court to intervene. Remember proving an implied contract is your responsibility since you allege the existence of one. Take stock of every interaction between you and the borrower to build a case that can motivate believability of the magistrate who will listen to this matter. You can opt to work with a lawyer or paralegal in putting together documents required in court for such cases.
Be encouraged by the words of Anais Nin. Each friend represents a world in us, possibly not born until they arrive, and it is only by this meeting that a new world is born. Now you know how to deal with money lending to friends.
Mr Mukoya is a lawyer with over 17 years experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail DN2Parenting@ke.nationmedia.com