I loaned a friend money in 1999 with a written contract for payment to be paid in 6 months. He ran into some very rough times and was unable to pay me. In July 2009 we spoke in front of a witness that after his mother passed away and he sold her house he would pay me the money he owed me. She passed away about a year ago and he just sold the house and when I asked for the money he would not pay me.I know the statue of limitations is up on the original written signed contract but will the verbal contract supercede the written contract to be with in the statue of limitations with the verbal contract. I want to take him to small claims court if I have a case. We have a meeting of the minds with the verbal contract and I do have a witness.
A modificiation requires some consideraton in order to be enforceable. I think your best position is to take the position that even though you did not make a new written contract you agreed verbally to give him a forebearance on the collection of the debt due to his financial situation and now that he has the funds, he is refusing to pay you. It is his responsibility to bring up the statute of limitations. In small claims, with your witness, the judge or commisioner may do equity and order payment of the debt. Don't forget to calculate the interest if that was agreed to as well? The filing and service of the small claims complaint might also change your friend's mind and cause them to settle the debt before the hearing?
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No, the verbal acknowledgement without additional consideration would be insufficient to modify the written agreement.
However, the statute of limitations is a defense, and the defendant would have to raise it as a defense, even in small claims court.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Personal Injury Lawyer
Statute of limitations on oral contracts is 2 years.
Divorce / Separation Lawyer
While I basically agree with Mr. Chen another argument I would make would be that there was consideration received from the borrower in that exchange for his reassurance of the loan and an extension of time to pay which was in essence extending the statute. He received the consideration and having additional time to pay in exchange for you receiving the consideration of a waiver of what would have been a running the statute of limitations.
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