In Estate of Cohen v. Booth Computer, 421 N.J. Super. 134 (App. Div. 2011), cert. denied, 208 N.J. 370, the New Jersey Appellate Division upheld a Chancery Judge's decision that a family partnership agreement providing for a buyout based on net book value may be enforced even where significant disparity exists between book value and fair market value. The partnership agreement was created and funded (except for only modest contributions by the children) by the father for the benefit of his children, but according to his terms. It was apparent on the face of the agreement that the father intended the beneficiaries to be family members, that the buyouts would require the children to provide funds to the other children, and that there would be the possibility or even probability that a surviving child would be the ultimate beneficiary of the partnership assets.
The court found the agreement, including the provision for "net book value," to be clear and unambiguous. Accordingly, the trial judge did not abuse his discretion by finding the buyout provision was not unconscionable simply because fair market value was approximately 60 times greater than book value, where the buyout provision is clear and unambiguous. The appellate court further noted the finding is consistent with the basic principle that where the terms of a contract are clear, it is not the court's function to make a better contract for either of the parties. The case illustrates the importance of careful drafting, as had the agreement been found to be unclear, the New Jersey Uniform Partnership Act might then have had to "fill the gap" resulting in a "fair value" buyout price instead of net book value.