Changes in Washington Practice Report (#6) / Divisible and indivisible contracts

December 11, 2013

Washington State LawThis is installment #6 in a continuing series of Changes in Washington Practice Reports.

A new section on divisible and indivisible contracts (section 1:12.75) has been added to Contract Law and Practice by DeWolf and Allen, volume 25 of Washington Practice.

As stated by the authors in the 2013-2014 Supplement to the volume:

“A contract may be divisible or indivisible, depending on the intent of the parties. An example of a divisible contract would be where fishermen agree to share the proceeds from a series of fishing ventures, if the parties intended that each venture constituted a separate contract….”

“By contrast, if an agreement is intended to cover an entire season of fishing…then the contract cannot be severed…” into separate contracts for each venture.

This discussion cites State v. Chambers, 176 Wash.2d 573, P.3d 1185 (2013), and it is helpful to further examine the analysis by the Washington Supreme Court for this case,

(This case involved an initial trial court decision followed by an initial appeal,  rulings by the Court of Appeals and Supreme Court; remand to the trial court; and a further appeal to the Supreme Court.)

Chambers involved the circumstances under which a criminal defendant entered into a plea agreement for multiple charges under multiple cause numbers. A combined sentence was ordered by the trial court.

The defendant later appealed and sought a reduction in the combined sentence.

A primary issue that was dealt with during the appeals was whether the plea agreement entered into by the defendant was divisible or indivisible.

Citing precedent, the Supreme Court noted that “A plea agreement is essentially a contract made between a defendant and the State…; Whether a contract is divisible or indivisible is dependent upon the intent of the parties…;(and) We look only to objective manifestations of intent, not unexpressed subjective intent….”

For this case , the Court reviewed the detailed facts of the case regarding how the plea agreement was developed and concluded that the objective intent of the parties was to create a “global, indivisible plea agreement”.

This new material for volume 25 is a reminder of the importance of structuring contracts as divisible (an agreement based on a series of separate contracts) or indivisible (an agreement that is reliant upon linkages among such contracts).

From this perspective, such a contract should state internally whether its individual aspects are to be considered divisible or indivisible.

Further, the surrounding negotiations and agreements should be thoroughly documented to provide an objective demonstration of the intent of the parties.

Additional information about contract law may be found in Washington Practice volume 25, and by making use of the extracts, summaries and other legal resource materials to be found in Methods of Practice, volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.