Verbal Contracts and Bad Paint Jobs
Q. Someone owes me $10,000 but there’s no contract. I loaned the money in cash but there’s no contract. Do I have a case?
The answer to your question is that it depends. Do you have any paper trail which can prove the existence of the loan and that the money is outstanding? An example of a “paper trail” would be emails exchanged between you and the debtor. If you have ever sent an e-mail seeking repayment of the loan with the debtor responding then that may serve as good evidence, or proof, in small claims court.
What about text messages? A new trend I am noticing is the usage of text messages to evidence a debt owing. If you have text messages from the debtor promising to pay you back, then I recommend getting that message transcribed in front of two witnesses and having the transcriber sign and date the transcribed message including his full contact information. Another form of paper trail is your bank statements. Can you show that you withdrew a significant amount of money prior to loaning the debtor the money? If so, this can help corroborate your claim that you loaned cash.
In the event there is no paper trail, do not despair, as you have the chance to win a small claims case by way of credibility. This means that if the matter gets to trial, a judge will assess your testimony and evidence as well as the debtor’s and decide who he thinks is telling the truth. So, if the judge believes that you loaned the money, that may be enough to win the case.
Q. I hired a company to paint my home and paid $5,000 up front. I signed a contract. The company promised that I would be satisfied and offered me a money-back guarantee. The work was terribly done, and I asked for my money back, but they are claiming they did a fine job. What do I do?
The first thing we have to do is analyze the contract. Does it specify in what manner the painting will be done, how many layers, what kind of paint, etc.? How about the money-back guarantee? Are there terms for how to apply the guarantee such as by giving notice to the company in writing? As one colleague of mine puts it, the contract will be your “bible”. In other words, when a dispute arises, always look to the contract to see what the parties actually agreed to.
The contract is also important because there is legislation that may apply such as the Consumer Protection Act. So, if, for instance, certain vital information is missing from the contract such as the agreed price (believe it or not I have seen contracts that leave this out), you may have an argument under the Act to terminate the contract and receive a refund.
Another crucial aspect, of course, is assessing the actual paint job. Who is right; you or the painter? The first thing you should do is take photographs of the work performed by the painter so that you can use this as evidence in the event this goes to trial at small claims court. As well, I advise clients to obtain a quote from another painter to evidence what it will cost to rectify the damage cause by the initial painter. You should also secure the second painter as an expert witness if possible because it will be your word against the painters if the matter goes to trial. In the very least, if you cannot get a witness to attend, the try and obtain a written statement from him to evidence the poor workmanship and ensure the statement is signed, dated and contains the painters full contact information including phone number and credentials as required by the Rules of the Small Claims Court.