1

There are probably numerous examples but I'll go with the one with which I am most familiar.

Let's say a debt buyer is trying to prove that it owns your debt. The "normal" type of proof is the Bill of Sale. But most of the time, the Bill of Sale references a Purchase Agreement which most debt buyers don't want to show (because it usually contains numerous disclaimers that may hurt its case).

But if the Bill of Sale references a Purchase Agreement, then it is not complete without it, right? Is it true that if the defendant asks, the debt buyer has to produce the Purchase Agreement as a matter of law, because of this fact, or else lose the probative value of the Bill of Sale?

2 Answers 2

1

A document does not have to include every document that it incorporates by reference to be used in court. The lack of a complete set of documents goes to the weight of the evidence, and not to admissibility of the evidence or its ability to establish a prima facie case of liability.

But, a party to a lawsuit has means that a very straightforward and routinely used to obtain these documents and to use them in their own case, though mandatory disclosures of documents, through "discovery", or through subpoenas of documents. If the party sued has a copy of the document incorporated by reference, that can also be used.

Indeed, a document incorporated by reference in a document that forms the basis for a lawsuit can usually be submitted in a "motion to dismiss" a claim for failure to state a claim upon which relief can be granted, even though the usual rule is that only materials provided in the original legal complaint can be considered in this "so what?" motion which asks, "if everything alleged in the complaint is true, is there still no basis to hold me liable?"

For what it is worth, the Purchase and Sale agreement would normally create the debt and the Bill of Sale would merely evidence performance of the contract, in most cases. But that doesn't detract from the general nature of the question.

Indeed, except for a handful of cases where the physical document is the evidence of the debt (like a "live" negotiable promissory note), the claim can be proven with sworn testimony in the absence of any documents at all, sometimes with evidence that there was a signed writing establishing the existence of the obligation even if it is no longer physically available.

0

It doesn’t have to

For example, most construction contracts don’t annexe all the drawings and specifications of which, there could be hundreds or thousands or more - they list them. They are therefore incorporated into the contract by reference.

The same is true for your debt collector. Most invoices don’t annex a copy of the contract they were raised under (assuming it was in writing) but they are still legally binding demands for payment.

If the matter goes to court to prove the debt then the contract will (probably) need to be entered into evidence by somebody - probably the plaintiff since they will want to use it to prove why the defendant owes them money. However, until then they have no obligation to produce it. If the putative defendant didn’t keep a copy of referenced documents, why is that the plaintiffs problem?

1
  • You may be able to obtain a copy via the GDPR (if applicable to the parties) if you are a natural person, as the contract would be personal data.
    – JBentley
    Commented Sep 13, 2021 at 9:51

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .