News & Noteworthy

Authored - NJ Contract Law Update - Can Parties Be Bound By An Agreement Where Written Proof Of Countersignature Is Unavailable?
AUGUST 07, 2013 | Windels Marx - Commercial Litigation

Kaible v. Gropack, __ N.J.Super. __, 2013 WL 2660995 (N.J.App.Div. June 14, 2013), is perhaps most instructive to those looking for guidance in the sui generis area of oppressed minority shareholder claims. Of course, that area has a core contractual element--but also a statutory basis and a grounding in fiduciary law.

For purposes of this series of contract articles, however, of interest is the fact that the courts enforced a written agreement where "plaintiff signed the [agreement] and returned it to [defendants] and [defendant]...subsequently informed him that it has been executed but...did not provide plaintiff with a copy, despite plaintiff's repeated requests." In light of specific testimony heard by the trial court, it upheld (and the appellate court affirmed) the claim that the partially-signed agreement was "binding on all of the parties".

In holding the Agreement binding, the Kaible courts relied on the relative credibility of the parties' testimony, and their conduct after the initial signature (as testified to by plaintiff).

The moral of the story is that although a litigant would always like to have a fully executed contract in possession, nonetheless creative advocacy may solve that problem if one does not exist.

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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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