with whom MATTHEWS, Justice, joins, concurring in part and dissenting in part.
Although I agree with most aspects of the court's opinion, I disagree with Part IILA and its conclusion that the trial court erred in finding that the June 1998 settlement agreement superseded certain terms of the 1996 agreement. The court's opinion relies on a 1945 Texas case concerning total substitution of one contract for another and concludes that the 1996 and 1998 agreements in this case "are not so inconsistent 'that the two cannot subsist together.'" 1 What the court's opinion fails to recognize, however, is that *816the 1998 agreement was not intended to re-seind the entire 1996 agreement and thus only partially superseded the earlier agreement.
Where parties to a contract make an agreement of "partial recision," under which they agree to discharge some, but not all, of their duties of performance under the original contract, that agreement is treated as a modification of the original contract, rather than a complete recision. "An attempt to make an agreement of 'partial recision' that would discharge less than all of [the parties'] remaining duties under the existing contract is considered a modification ... and not an agreement of recision." 2 And when the parties agree to a new contract that modifies some terms of their original contract, "the terms of the new contract are found partly in the original contract and partly in the modifying contract."3 Thus, a new contract, which contains a term that is inconsistent with the term of an earlier contract, "is interpreted as including an agreement to rescind the inconsistent term in the earlier contract." 4 This modification of discrete terms of the original contract does not require an agreement to rescind the entire original contract: "The parties may or may not at the same time agree to rescind all of the other provisions of the earlier contract. The extent of the substitution is a matter of their intent." 5
Although the court's opinion appears to recognize these black letter principles, it ignores the fact that Stacey and Will did not intend to rescind the entire 1996 contract-they intended only to modify certain provisions of the 1996 agreement. Indeed, in the 1998 agreement the parties recognized and reaffirmed most aspects of the property distribution of the 1996 agreement, modifying it only as to the East Hill Road cabin with its furnishings and appliances, and the lobster boat with its gear. While the 1996 agreement purported to accomplish a final distribution of all of the parties' property, including the cabin and its furnishings and the boat and its gear, the 1998 agreement modified the earlier agreement by leaving the resolution and distribution of these specific items of property up to the court. Thus, the 1998 agreement modified the contract and rescinded the original contract's terms as to those items of property.
Whether Stacey and Will intended to modify certain aspects of their original agreement presents a question of fact, The trial court found that Stacey and Will intended to have the court decide the distribution of certain items of property that were originally covered by the 1996 agreement. "[It seems clear ... that the parties agreed that the issues identified in the 1998 agreement as unresolved were to be addressed by the court without reference to the 1996 agreement." This finding regarding Stacey and Will's intent is amply supported by the context in which the 1998 agreement was entered.
The parties were in the process of litigating the effect and validity of the 1996 agreement when they entered into the 1998 settlement agreement. This fact alone lends strong support to the trial court's conclusion that the parties decided to reaffirm the resolution of some property issues, leaving the remainder to the court to decide. When Will filed his answer to Stacey's complaint, he alleged in a counterclaim that the parties had resolved all interests in their informal partnership by the 1996 contract. Stacey's answer to the counterclaim disputed this assertion. It was only after Stacey and Will understood that there was a contest as to the validity of the 1996 agreement and were proceeding with their pending lawsuit that they entered the new settlement agreement in June of 1998. Will's acquiescence in the 1998 settlement agreement to leaving certain property items open for resolution by the court was contrary to his earlier pleadings and position that Stacey's claims were barred by the 1996 agreement. Moreover, Will drafted the 1998 agreement. If it was *817his view that disposition of the lobster boat and gear and the East Hill Road cabin and furnishings were conclusively resolved by the 1996 agreement, he could easily have stated that those items remained covered by the terms of the original agreement.
For these reasons, I would affirm the superior court's finding that the 1998 agreement modified the 1996 agreement on the issues of distribution of the East Hill Road cabin, its furnishings, the lobster boat, and gear. Moreover, I would affirm the superior court's distribution of those items of property. Therefore, I respectfully dissent.
.Slip Opinion at -- (citing Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 479 (1945)).
. Restatement (SEconp) or Contracts § 283 emt. b, at 391 (1981).
. Restatement (SEcowp) or Contracts § 149 cmt. a, at 374 (1981).
. 15 Walter H.E. Jaeger, Williston on Contracts § 1826, at 485 (1972).
. Id. at 485-86 (emphasis added).