Legal Question in Civil Litigation in Illinois

Re: Oral Contracts

I take it you do not have your agreement in writing. There are some restrictions on oral contracts and how well they can be enforced in Court. But, beyond that, how do you assume proving your side? People wire money to each other everyday and some of it is gift. How will you prove your case if your family member comes and tells the Court that you gifted the money to him and that there was no agreement for repayment... Your word against his. Think about that before you take action...

Good luck

Nima Taradji

Re: Oral Contracts

�What legal action can I take . . .�

Plainly stated, you can sue. If your claim is at or under $5000 (or if it is more than $5000 but you are willing to settle for $5000 because the procedure is faster and easier), you can use the small claims procedure. The small claims procedure is not uncommonly handled by the litigants themselves without resort to hiring a lawyer. The circuit court clerk located in the courthouse in your county has forms for small claim cases.

If your case is for more than $5000, you can file a regular civil lawsuit. Most people employ a lawyer to file such a case.

Among the possible causes of action you can maintain is �money had and received.� An action for money had and received (in the nature of an action in indebitatus assumpsit) which is maintained either under the theory of implied contract or under the theory of quasi-contractual obligation is maintainable where defendant has received money which in equity and good conscience belongs to the plaintiff.

And don�t worry about whether your debtor might tell the court that the money was a gift. Once you prove you paid him the money, the burden of proof shifts to him to PROVE that the money was a gift. And his proof of gift must be by clear and convincing evidence, a high standard. This is a tough burden for him to meet when you are there to testify that it wasn�t a gift. Sure, it�s your word against his, but because the burden has shifted to him to prove it was a gift, a tie means you win.

You should be aware that the small claim or regular civil action procedure results in a money judgment in your favor and against the defendant (if you prevail), but a money judgment is not the same as having cash in your pocket. If you are not paid voluntariliy, you will need to employ the procedures for enforcing money judgments (there are many such procedures ranging from citations to discover assets to judicial sales of property to wage deduction orders to attaching bank accounts) to collect. And if your debtor has no assets or income, you won�t be able to collect until the debtor gets a job or accumulates something worth taking (your money judgment is good for years and is revivable).

Re: Oral Contracts

You can sue him based on an oral contract. It's simply a matter of going to court and filing the relevant paperwork.