How can I recover a debt if I have nothing signed?

Question

José Manuel Alburquerque · Accepted Answer

Having nothing signed does not prevent you from getting paid, because a debt exists even if the agreement was made by word of mouth. What changes is that you will have to prove it by other means, such as bank transfers, messages, emails or witnesses. Before going to court, try to get the debtor to acknowledge the debt in writing and claim it from them by a means that leaves a record, inviting them to negotiate, because the law generally requires an attempt to reach an agreement before bringing a claim. If they do not pay, you can claim against them in court through the order for payment procedure (“proceso monitorio”), a fast-track route for money debts recorded in documents such as invoices or delivery notes, or by bringing a claim under the “juicio verbal” (the simplified procedure) or in ordinary proceedings (“juicio ordinario”), depending on the amount. Proving the debt An oral agreement is as binding as a written one. The difficulty is that whoever makes the claim has to prove that the debt exists and how much is owed. Any evidence will do, but it is worth knowing the most common weak point. A bank transfer shows that the money left your account, not why it left. If the debtor later says that it was a gift or payment for something else, you will have to prove that it had to be repaid. That is why so much weight is carried by messages and emails in which the debtor admits the debt, asks for more time or promises to pay, as well as by any partial payments they have made. The hardest thing to prove is money handed over in cash, with no receipt or witnesses. Getting the debtor to acknowledge it If you still have nothing in writing from the debtor, write to them by message or email, remind them of the amount and where the debt comes from and ask them when they intend to pay. If they reply without denying it, their reply will be good evidence. If they agree to sign a document acknowledging the debt, with a payment schedule, even better. The acknowledgement also makes the time limit for claiming start again. That time limit is the same as if there were a written contract. In Catalonia it is generally ten years, although a claim for payment for a service or a piece of work becomes time-barred after three, that is, it can no longer be made. In most of the rest of Spain, the general time limit is five years. Claiming it in court Before suing, claim the debt by a means that leaves a record of its content and of its receipt —such as a “burofax”, a certified letter with proof of content and delivery— and genuinely invite the debtor to negotiate, for example by proposing a payment schedule. If there is no agreement, the route depends on what you have: If the debt is recorded in documents of the kind normally used in that type of relationship, such as invoices or delivery notes, even if they are not signed by the debtor, you can use the order for payment procedure. If you have no such documents, you will have to bring a claim under the “juicio verbal”, if you are claiming up to 15.000 euros, or in ordinary proceedings, if you are claiming more. At trial any evidence is valid, including the debtor's own testimony. Up to 2.000 euros you do not need a lawyer or a court agent (“procurador”). Above that amount they are compulsory, except for filing the initial application in the order for payment procedure.