News & Noteworthy



Authored - NJ Contract Law Update - "Fervent" Factual Claim and "Vehement" Denial Yield Triable Issue of Fact in Contract Case
APRIL 22, 2014 | Windels Marx - Commercial Litigation

In O'Shea v. Accord Enterprises, LLC, __, N.J.Super. ___, 2014 WL 463316 (N.J.App.Div. Feb. 6, 2014), the Court explained that in contract claims, as with other claims, a factual dispute not utterly disproven by documents must be tried, and not resolved by summary judgment. O'Shea involved telephonic statements about the purpose and circumstance of a $161,000 "wire". Plaintiff testified that the money was to be used for an investment; the defendant and his associate claimed that the money was in payment of a debt. The Court explained that this material testimonial difference as to the purpose of an essentially undocumented transaction definitionally yielded a triable issue of fact. The "fervency" or "vehemence" of the competing assertions militated against, not in favor of summary judgment.

A similar result (but with different 'adjectives' and facts) was also recently reached (as to a settlement agreement) in Southpaw Management, LLC v. Care First, 2014 N.J.Super.Unpub. LEXIS (Feb. 12, 2014).

These decisions should be enlightening to the practitioner both (1) as to the need to (a) carefully document any transaction, and (b) expressly memorialize or disclaim any purportedly relevant oral communications, and (2) as to issues to be considered in the 'prosecution' and defense of any such claim.

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 and now in its third edition. His updates on New Jersey contract law are based on 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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