Good morning, I know from experience that borrowing money among friends can be the main reason for the breakup of friendships. The problem with the recovery of borrowed money occurs quite often, regardless of the amount of the loan and the fact whether the loan took place on the so-called verbal agreement, or the parties have signed an appropriate written loan agreement.
You are worried that the lack of a written loan agreement closes your way to money recovery. You are wrong!
I will write now that you do not have to lose your head. You have proof of an oral money loan agreement in the form of a bank account transfer and on this basis, you will recover the money you borrowed.
Money loan without a contract and a chance to recover money in court
According to the general rule contained in art. 6 of the Civil Code, the burden of proving a fact lies with the person who derives legal effects from this fact.
Therefore, if you decide to pursue your claims through civil proceedings, you will be required to submit to the court evidence in support of your claims, i.e. the conclusion of a money loan agreement with the repayment obligation.
Before the court, you will have to show that you have actually donated USD 11,000 to your colleague on the basis of an oral loan agreement between you.
It is true that art. 720 kc indicates that the loan agreement, whose value exceeds one thousand zlotys, requires keeping the document form.
You have not made such a contract with a colleague, but it does not put you in a lost position right away, because according to the principle expressed in art. 74 § 1 and 2 of the Civil Code, a reservation of a written, documentary or electronic form without the pain of nullity has the effect that in the event of failure to comply with the restricted form, evidence from the testimonies of witnesses or from the parties being heard on the fact that an act has been carried out is not in dispute.
This provision shall not apply if the preservation of a written, documentary or electronic form is reserved only to cause specific effects of a legal act.
However, despite the failure to comply with the written loan, documentary or electronic loan agreement provided for evidentiary purposes, evidence from witness testimonies or interrogation of the parties is admissible if both parties agree, the consumer requests it in dispute with the entrepreneur, or the fact of legal action is probable by means of a document.
As you can see, you have a chance to demand that the court award the amount arising from the oral loan agreement by providing proof of its conclusion in the form of a transfer.
Termination of the oral loan agreement
Since you do not have a loan agreement, it will be difficult for you to prove to the court whether the repayment deadline has expired and whether it has been reserved at all. That is why I advise you to send a letter to your ex-colleague terminating the oral loan agreement.
In accordance with art. 723 of the Civil Code, if the loan repayment deadline is not specified, the debtor is obliged to return the loan within six weeks of termination by the person giving the loan.
The above gives you the right to enforce the repayment of the borrowed amount after six weeks from the day the borrower receives the notice of termination of the loan agreement.
The termination of the oral loan agreement is best sent to the borrower for evidence purposes by registered mail with a return receipt.
The pre-trial loan recovery request
It may happen that, despite the reminder of the obligation to return the money, your former friend will still be passive in the matter and will not take the intention to finally give you back the money borrowed.
Therefore, after the ineffective expiry of those six weeks from the day when the correspondence with the letter terminating the loan agreement is received by him, it is worth sending another letter, this time a pre-trial request for a refund of borrowed money (request for payment) within a specified period (3, 7, 10 or 14 days) – on pain of referring the case to court.