How do you prove an oral contract?

Question

José Manuel Alburquerque · Accepted Answer

With any kind of evidence, because the law accepts them all, from messages and emails to witnesses or the other party's own testimony at trial. Evidence that came into existence before the dispute usually carries more weight, such as bank transfers with a clear reference, receipts, quotes or messages discussing what was agreed. What the parties did after reaching agreement also counts for a lot, for example paying, handing over the thing or starting the work, because it shows what they agreed. Whoever claims something on the basis of an oral contract is the one who has to prove that it exists and what was agreed. What counts as evidence The “Ley de Enjuiciamiento Civil”, Spain's Civil Procedure Act, which is the same throughout the country, accepts the following kinds of evidence, among others: Documents, even if they are not signed, such as quotes, invoices, delivery notes or written notes. Messages, emails, photos, voice messages and recordings. Bank transfers and bank statements, ideally where the reference says what each payment is for. Witnesses, whose evidence the judge weighs using logic and experience, taking into account, for example, their relationship with the parties. The other party's testimony. If they do not attend the trial or refuse to answer without good reason, the judge may treat as true the facts in which they were personally involved and which are unfavourable to them. An expert's report, for example on the value of a piece of work or on the authenticity of some messages. To work out what the parties intended, the courts look above all at what they did when they entered into the contract and afterwards. If one of them paid the same amount every month and the other accepted it without objection, or if the thing was handed over and used, that conduct says a great deal about what was agreed. Messages and recordings WhatsApp messages and emails are valid as evidence. If the other party denies that they are genuine or claims that they have been tampered with, whoever relies on them has to back them up. That is why it is advisable to: Keep the phone and export the full conversation, rather than submitting isolated screenshots. If the matter is important, ask a notary for a notarial record (“acta notarial”) of the messages the notary sees on the phone, or commission a report from a digital forensics expert. Recording a conversation in which you take part does not breach the secrecy of communications, so the recording can generally be used as evidence. Recording someone else's conversation, in which you do not take part, does breach it. Such a recording is not valid as evidence and may be a criminal offence. Who has to prove what and how to prepare The burden of proof, that is, who has to prove each point, is shared. Whoever makes the claim has to prove the contract and what was agreed. Whoever says that they have already paid or that the contract has ended has to prove that themselves. If there is no dispute yet, it helps to send the other party an email or a message summarising what was agreed, for example “as agreed yesterday, the price is 3.000 euros and the deadline is one month”. Keep their reply as well. If they do not dispute it, it can serve as evidence, although silence alone does not amount to acceptance. Before suing, the law generally requires an attempt to reach an agreement, for example through a written proposal or mediation. What is said in that negotiation is confidential and, with some exceptions, cannot be used later at trial, so it is advisable to have the evidence gathered beforehand.