Section 4.38 Rescission Generally

• Library: Contracts 2016 Supp

A. (§4.38) Rescission Generally

A party to a contract may, under certain circumstances, elect to rescind the contract upon a breach by the other party. Harris v. Desisto, 932 S.W.2d 435 (Mo. App. W.D. 1996); McCullough v. Newton, 348 S.W.2d 138 (Mo. 1961); Ballenger v. Castle Rock Bldg. Corp., 904 S.W.2d 62 (Mo. App. W.D. 1995). Rescission is an action seeking to restore the status quo, and it extinguishes the contract as effectively as if it had never been made and returns the parties to the positions they occupied before the contract was executed. Ehlert v. Ward,588 S.W.2d 500, 503 (Mo. banc 1979); Phillips v. Bradshaw, 859 S.W.2d 232 (Mo. App. S.D. 1993). To justify rescission, however, the breach of contract must be material, meaning that it must relate to a vital provision of the agreement, i.e., the breach must go to the very substance or root of the agreement and cannot relate simply to a subordinate or incidental matter. Patel v. Pate, 128 S.W.3d 873 (Mo. App. W.D. 2004) (finding a...