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Boright v. Fitzsimmons

A-2041-01T5 (N.J. Super. App. Div. 2002) (Unpublished)

CONTRACTS; ATTORNEY REVIEW; NOTICES— Even though an attorney review contingency provision may not specifically list faxed notices as a way to communicate a cancellation, if the parties previously used faxed notices and a faxed cancellation notice is actually received, it will be effective.

A residential real estate contract contained a general notice provision requiring that all notices be in writing and be sent by either telegram, telefax, certified mail or personal delivery. The contract’s attorney review clause “required notice of disapproval to both the realtor and the other party within the three-day period, but further required notice to the realtor by either certified mail, telegram, or personal delivery, the former two effective upon sending.” On the last day of an extended attorney review period, the seller’s attorney telefaxed a letter to the buyer’s attorney and the two Realtors involved in the transaction “disapproving the contract and declaring it null and void.” The buyer’s attorney acknowledged receiving the telefaxed notice on the day it was sent. Two days later, the seller’s attorney “sent letters disaffirming the contract by certified mail, return receipt requested to [the seller’s attorney] and [the seller’s] realtor.” The buyers sued for specific performance, arguing that the seller’s disapproval telefaxed letter “did not terminate the contract because the manner in which it was sent, namely by facsimile transmission, deviated from the requirements of the contract’s attorney review clause and the language of the attorney review provisions within the Administrative Code.” The attorney review period provisions within the Administrative Code mirrors the language within the language. The lower court denied the buyer’s motion for summary judgment, reasoning that there was no question that the cancellation notice was received. First, although there was no question that utilization of a fax machine to communicate such a cancellation was not within the attorney review clause, the lower court felt compelled to consider the general notice clause. The general notice clause appeared to be applicable to “all notices,” without excluding notices under the attorney review clause. As a result, the Court looked at the substantive rights of the parties and did not feel that they were violated by using the telefax machine to send the cancellation notice. Consequently, the lower court found that it could engraft the general notice clause onto the attorney review clause. In essence, it found that utilization of the fax was appropriate. Further, “[i]n this particular case [the lower court’s] conclusion [was] that the parties entered into a contract which recognized the telefax machine, indicated that it was appropriate and proper, and indicated that it would be binding on the parties should they use that machine.” On appeal, the Appellate Division agreed with the lower court’s holding. It felt that the manner of delivery “clearly conformed to the contract’s general notice requirements, which expressly allowed for faxed transmission, and was not inconsistent with its more specific attorney review clause, which prescribed only the motive notification to realtor/broker.” Consequently, “from the perspective of the [buyers] and their attorney, they received actual notice of the seller’s termination on time and in the manner permitted by the contract.” It wasn’t very important to the Appellate Division that there was an issue concerning the manner of effectuating notice to the realtor. Under the circumstances presented, the Court did not consider a deviation in how the brokers received their notices sufficient reason to be important. The Court further pointed out that the parties had previously used the telefax to secure an extension of the very same attorney review period.


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