In November 2011, the Court of Appeals granted leave to appeal in Jade Realty LLC v. Citicorp Commercial Mortg. Trust 2005-EMG.1 The case presents an interesting issue of contract law: In the absence of a claim for reformation, can a court addressing a breach of contract claim add language to an unambiguous, enforceable agreement to correct what the evidence indicates was a drafting error by counsel?
In ruling it could add language, the Supreme Court (Michael D. Stallman, J.) relied upon Matter of Wallace v. 600 Partners, Co.2 where the Court of Appeals noted that in limited instances where some absurdity has been identified in an agreement or it would be unenforceable as written, a court may carry out the intention of the parties by transposing, rejecting or supplying words to make the meaning of a contract more clear.
We know what the courts have said. What do you think? Can a court addressing a breach of contract claim add language to an unambiguous, enforceable agreement to correct what the evidence indicates was a drafting error by counsel? Post your comment at the end of this article.
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