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Authored - NJ Contract Law Update - In Pari Materia: Whether You Want It Or Not
JULY 31, 2012 | Windels Marx - Commercial Litigation

In State v. DeLucca, 2012 WL 2873726 (N.J.App.Div. July 16, 2012), the Court applied the doctrine of in pari materia without naming it. The Court expressed the doctrine as follows: "Where parties have made several written agreements in connection with one subject or transaction, they are properly read as one with separate components that explain and amplify one another [citations omitted]."

In DeLucca, a dispute over an eminent domain "taking" (with easement) was resolved via "three agreements" entered into over a period of time, serially: (1) agreeing to the taking, (2) the $3,000 payment therefor, and (3) a supplemental understanding detailing DOT's intended work to realign the driveway. At the conclusion of that work, the DeLuccas complained that the work had not been done "in accordance with the agreed-upon plans or in a workmanlike manner".

The first agreement generally referenced the driveway work to be done. However, the court judgment arising out of the first agreement did not reference the work DOT agreed to do. That judgment stated:

  • This judgment resolves all issues raised in the complaint or claimed by defendants which arose or will arise out of this action, except as to any issues related to contamination [etc.]

The third agreement was much more specific, and referred to work being done according to a particular "attached plan". As noted, when the work was completed, the DeLuccas claimed that DOT did not properly perform work in accordance with that plan.

On a motion for enforcement of the "agreement", the trial court refused; indicating that the above-quoted judgment on the first agreement barred any enforcement of the later agreement.

By contrast, the Appellate Division found the three agreements interrelated and enforceable. That Court viewed the driveway work to be additional compensation for the taking; holding that the trial court had erred by "not read[ing] these obviously related components of the transaction together". The Appellate Division further noted that the DOT would not have gone on to perform the driveway work (however poorly, according to the DeLuccas) if the judgment quoted above foreclosed DOT's responsibility.

The purest form of in pari materia--agreements executed at essentially the same time--was absent from DeLucca. Rather, there was a series of agreements on different dates, some resulting in court judgments. Thus, the application in pari materia was a bit muddled; the Court could have elected to proceed in a different fashion to achieve the same results, focusing on (1) the serial nature of the agreements, and whether the final one controlled on the subject expressed therein; and/or (2) what entry into that third agreement (not merely its performance) meant as to the probable intent of the initial agreement and judgment. However, in pari materia was not a bad fit; and it is enlightening to keep in mind that the doctrine may be applied in circumstances broader than one might intuit.

Application of in pari materia is more complex than can be seen simply by reading DeLucca. It includes, for example, the following additional considerations (each of which has complexities that go beyond the focus of this article):

  1. Is any one of the agreements intended to be an integrated, complete expression of the transaction? If so, does the agreement say so?
  2. Could later agreements be seen as superseding earlier ones in whole or in part?
  3. Does each agreement expressly reference the other(s) as either (a) warranting in pari materia construction; or (b) indicating that one of the agreements must give way to the other(s) in general, or as to specific components?
  4. Which is better for your client: (a) an in pari materia interpretation, (b) one agreement controls over the other(s) in the event of conflict, (c) one supersedes the other(s), etc.

The foregoing questions correlate to obvious practice pointers.

Another way to proceed, though rarely used, would be to have a "master" agreement that explains the interrelationship among the subordinate agreements. Those agreements should be attached as Exhibits (or, if still in process, as in DeLucca, described in detail), and referenced in that fashion; along with an admonition to interpret the documents in pari materia or not (or to have one "control in the event of a conflict"), as the parties may agree.

Contact & Legal Disclaimer

Clark Alpert is the author of Guide to New Jersey Contract Law, published by the New Jersey Institute for Continuing Legal Education, originally published in 2007 and updated in November 2011. His updates on New Jersey contract law are based in recent issues and practical methods for addressing similar situations in your practice or business. They are not intended to serve as legal advice. Clark welcomes your questions and comments.

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