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Options when subscriber fails to make down payment on the install

September 16,  2021
Options when subscriber fails to make down payment on the install
          I have an accepted proposal and contract with NO deposit received yet. How long should I wait before rescinding the contract? I use the All In One for commercial. 
 Thank you,
          Let’s get the scenario straight.  You have a proposal that lays out the scope of work and material for the install and the after install services.  The subscriber has approved the proposal.  You then had the subscriber sign a Commercial All in One which incorporates the proposal as the Schedule of Equipment and Services.  The All in One calls for a down payment and the subscriber has not paid that down payment.  You now want to know if you can rescind the contract.
          My initial thought is, why do you want to rescind the contract?  That lets the subscriber off the hook for its contract obligations, the principal one being paying you.  So you have the option of rescinding or deeming the subscriber to be in breach of contract. 
          Rescinding the contract could be more problematic than the other alternative.  I imagine that you believe that the failure of the subscriber to make the first payment, the down payment on the installation, results in a lack of consideration for the contract.  Consideration is one of the elements of a contract and without consideration you don’t have a contract.  However consideration is much more than the money and there is nothing in the All in One that requires that the down payment be made to “activate” or “validate” or “enforce” the contract.  In fact, if you made a particularly bad deal for yourself and now want to rescind blaming it on the non-payment, the subscriber may seek to hold you to the contract rather than have to find another company to match the deal.
          It is probably prudent to find out why the first payment wasn’t made.  Could be the subscriber already moved ahead with someone else, or is having financial problems, lost the lease or who knows what.  Point is, there may be a good reason you haven’t gotten paid and pursuing the subscriber for breach may prove to be a waste of time.
          But more likely the subscriber is viable and still obligated under the contract.  You should make it clear that you are ready, willing and able to perform your duties under the contract and that you expect the subscriber to perform its duties, the first of which may be to make the down payment.  You will find that the All in One has a rather simple legal paragraph that explains exactly what the subscriber is liable for when it breaches the contract.  You should pursue that remedy by sending the subscriber to K&K for collection.  The sooner you do it the more likely the matter can be resolved by reinstatement of the contract, if that’s what you want.  For information on K&K collection department call paralegal Jessica Bayron at 516 747 6700 x 335 or email her at

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301