Can I take my friend to court without a written contract?
Dear Mirror Lawyer, A friend of mine informed me of a Toyota Corolla car that was up for sale.
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I expressed my interest in purchasing the car and asked for time to obtain a loan to finance the purchase.
My friend went with me to get a loan from the bank. At the bank, I handed the money over to the seller of the car in the presence of the banker and my friend who facilitated the process.
The seller was to hand over the car to my friend to be delivered to me the following day. It’s been two months now and my friend has still not delivered the car to me. He says the seller complained that the money I gave to him was stolen and so he could not get the car.
The seller has stopped answering my calls and refuses to avail himself for our scheduled meetings. My bank also needs me to pay back the money with interest.
We did not put our agreement into writing, and so I do not know how I will prove my case if I take him to court. What do I do?
Amidu Samed, Kotobabi
Dear Amidu, As a general rule agreements can be both oral or written, and would be perfectly valid. However, where the law expressly provides that an agreement must be in writing for its validity, then all parties must comply strictly with the provision of the law.
I would also say that it is safer and easier to prove in court where you have documentary or written evidence of the agreement signed by all the parties. This notwithstanding and as stated above, the law also makes provision for circumstances like your case when people enter into agreements without documenting it.
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Once you can find other means of proving a valid agreement between you and your friend, the court will take measures to protect your interest.
Section 11 of the Ghana Contract Act, 1960 (Act 25) confirms the position above. It provides that subject to the Act, and to any other enactment, a contract whether made before or after the commencement of the Act is not void or unenforceable by reason only that it is not in writing or that there is no memorandum or note of the contract in writing.
For a valid contract to be made, there must be evidence of an offer to do something and acceptance of that thing. There must also be valuable consideration given in anticipation of the other party providing that thing. Finally, there must be an intention to create legal relations.
In your case, since you gave the money for the purchase of the car to the seller at the bank in the presence of your friend and the bank official, you can use the two as evidence to show the court that you actually gave the money to the seller, that he accepted it, and that it was for the purchase of the car.
This would mean extracting an admission from your friend and also testimony from the bank official who witnessed the transaction between the two of you. The CCTV security footage at the bank could also serve as evidence of the exchange.
With these, even without a written contract, you can prove to the court that there was a valid agreement between you and your friend, which your friend has breached.
If the court gives judgment in your favour, your friend may be ordered to pay back the money or to deliver the car to you.
His property may also be sold to obtain the money for you. You may also get him to pay the interest on the original money you gave him.