NEWS & INSIGHTS

Rescission or Termination After the Original Agreement Was Not Delivered and Its Terms Differed from the Prior Explanation

1. Facts and Background

A signed documents at the contracting site but received only a custody confirmation rather than the original agreement. A was later unable to obtain even a copy when attempting to verify the terms. A retained LK Partners LLC to assess the burdens of maintaining the relationship and the available legal and negotiated options for ending it.

2. Key Legal Issues

First, the issue was whether failure to deliver the original agreement affected the agreement's validity. Because the agreement is generally consensual and is formed by agreement of the parties, nondelivery alone does not ordinarily invalidate it. Second, the allocation of the burden of proof in a dispute over the terms had to be considered. Third, A's right to demand delivery and the legal significance of continued nondelivery had to be assessed.

3. Work Performed and Outcome

LK Partners LLC (i) first secured the custody confirmation, receipts, messages, and other materials showing the existence and content of the agreement; (ii) demanded delivery of a copy in writing and set a response deadline; (iii) compared the delivered agreement with the representations made on site; and (iv) determined the direction of any cancellation or rescission/termination claim only after reviewing the original. The original agreement revealed provisions inconsistent with the prior explanation. Based on those differences, the agreement was rescinded or terminated and the payments already made were returned. This case shows the importance of reviewing contract formation, contract language, performance, and evidence together. The outcome turns on whether an actual discrepancy exists and whether it materially affects the contractual purpose. It is safer not to reach a conclusion before securing the original agreement.