Legal Clinic:I want to sue a friend who owes me money

Hi Legal Clinic,

I have a friend whom I loaned money a while back, but things got thick for him and the business he started went down, so I did not pursue a repayment out of empathy for his situation. A year after the incident, he got a good job. I asked him to repay me my money, but he is playing deaf and just gives excuses. When I threatened to take legal action, he claimed I had no evidence. He no longer responds to my calls or texts anymore. I have some WhatsApp chats from our conversations. I would like to take some legal action against him, even though I know this may ruin our friendship. What is your guidance on this?

Dear Reader,

There is an American proverb that says, before borrowing money from a friend, decide which you need most. I believe the opposite is true. Many of us, including our readers, get to acknowledge such pain when recalling their own experiences. Formal employment in a layman’s understanding is seen as a regular salary, and if it is from a good job, then substantial. The law is not blind to the circumstances such as yours.

The issue between you and your now employed friend is about a contract, in which you loaned him money and his obligation was to pay back.

Remember, the burden of proof will be your responsibility.

Contracts are promises between private parties that are recognisable by law, and therefore enforceable. The exchange of money between the two of you and the promise of repayment gave rise to a contract. Your debtor-friend’s talk shows the absence of a written document since he claims you have no evidence. Even though, certain transactions, especially those concerning land must be written. Nonetheless be glad that oral or verbal agreements, sometimes referred to as implied contracts are enforceable, only that determining such matters calls for a higher threshold of proof before the judge or mediator as the likely evidence will be word of mouth, corroborative witness and any other communication or actions indicating the presence of such a contract. Remember, the burden of proof will be your responsibility.

Breach of contract

Your friend is in breach of the contract since he failed to refund the loan. If you opt to approach the court, then its main role will be to determine the validity of the contract. In determining legitimacy, the court will seek to verify if there existed capacity of the parties to create and enter into a legal relationship and if this was done without any coercion. Similarly, extend to find if the subject matter was lawful, and the presence of consideration, in this case, the loan. The court, in trying to reinforce the process of determining whether a contract duly existed, may seek to review the WhatsApp chats you have mentioned. You have called them chats, an indication that these were conversational. If these conversations point to responses regarding the issue of loan refund, then evidence that a contract was true by the conduct of the two parties and therefore the purpose for which it was entered. This, plus the “blue tick” confirmation that your messages were received and read. The court may require this evidence either in its original form or through a certified copy.

This interpretation comes from the guidelines that were issued by the Chief Justice on the March 20, 2020 following the public health directives to diminish the spread of Covid-19. Section 5 of these guidelines, states that during this period, parties are directed, whenever possible and unless otherwise directed by the court, to serve court documents and processes through electronic mail services and mobile-enabled messaging applications as provided for under Order 5 Rules 22B and 22C of the Civil Procedure Rules. Your matter happens a time when electronic media is providing a window for progressive jurisprudence in the legal circles.

Mediation

Additionally, non-judicial mechanisms are encouraged by the constitution and the law.  If you want to save your friendship, consider mediation. This is where a third party is sought by the disputing parties to help them negotiate the conflict between them. The mediator acts both as a facilitator assisting in communication, and deal maker, encouraging concessions and compromises. His or her role is to transform the dispute by allowing the disputants a fresh insight into the issues and their positions. Lastly, the mediator will act as an adjudicator or assessor to provide you with an appraisal of the merits of the case on a legal, technical, or even common-sense standpoint. When you need the services of a mediator you can reach out to the High Court Registrar in your area for contacts of accredited mediators. Alternatively, you can find accredited mediators through the judiciary website.

Mr Mukoya is a lawyer with over 17 years' experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail [email protected]