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Say a 24 hour gym Franchise offers cancellation through email of their memberships. A cancellation email was sent but the membership was never cancelled and has been withdrawing dues for up to two years from a checking account. The ownership has transferred to a new franchise owner from the original, from when the email was sent.

With full proof of a sent email stating all information to cancel the membership who would be liable for reimbursement of membership dues? Does liability fall under the initial owner who should have cancelled the membership, the new owner who continued to withdraw dues, or the franchise as a whole? When filing in small claims I am wondering who the defendant would be?

The new owner states they have a waiver of all liability from the previous owner.

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  • I suspect you mean an indemnity from the previous owner, not a waiver. – chapka Aug 13 '15 at 18:18
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I think these are the people involved:

  1. There is you: the first-party,
  2. there is the original franchisee (A) with whom you had a contract;
  3. there is the current franchisee (B) who took over the management of your contract from party A under a different contract between A & B, and
  4. there is franchiser (C) who had a contract with A and now has one with B but has never had a contract with you.

First, was your contract with A was properly terminated? This is not a given since there are no doubt specific ways in the terms by which this must be done. You need to read the terms of the contract; unless it allows for cancellation by email then you have not cancelled the contract. Also, proof of sending the email is not proof of receipt; unlike a letter, receipt of an email cannot be deemed.

Assuming that the contract was terminatedthen A has taken some money to which it was not entitled and B has taken some money to which it was not entitled. Between you and them you must pursue each of them for the money they took - you are not interested in the contractual arrangements between A & B or either of them and C; that is for them to sort out.

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  • In the EU, email is "writing", so a contract that specifies the contract must be terminated in writing would be terminated by an email (the contract would have to specifically exclude email if it wanted a dead-tree letter). I suspect that rules on whether receipt of an email is a rebuttable presumption will also vary by jurisdiction. – Martin Bonner supports Monica Jul 3 '18 at 13:59
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Unless there is a limit in small claims court, sue all of them. List them all as defendants. Force them to sort it out. (This is just an idea for you to pursue, it is not legal advice, I an not your lawyer, and you should assume I am completely wrong)

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  • I don't think the franchiser is likely to be liable, but I definitely agree with sue both original franchisee and current franchisee. – Martin Bonner supports Monica Jul 3 '18 at 13:56

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