Will my verbal contract be valid after statue of limitations up with my written contract?

Asked over 1 year ago - San Jose, CA

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.

Attorney answers (4)

  1. Frank Wei-Hong Chen

    Contributor Level 20

    5

    Lawyers agree

    Answered . 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... more
  2. Malosack Berjis

    Contributor Level 20

    5

    Lawyers agree

    Answered . Statute of limitations on oral contracts is 2 years.

  3. Constantine D. Buzunis

    Contributor Level 17

    2

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . 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?

    Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship.... more
  4. John Noah Kitta

    Pro

    Contributor Level 19

    2

    Lawyers agree

    Answered . 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.
    ____________________

    This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client... more

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