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Sub: K Question
Author: alejo [21237]
01 Feb 2010 07:40 PM
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alejo

What is the difference between Accord and Satisfaction and K modification? Thanks. Please put examples.

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Author: sfcityman [10] Send Private Message
01 Feb 2010 08:39 PM
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sfcityman

An accord and satisfactions is essentially a separate contract from the prior contract.  Typically, some lessor performance has been agreed to by the parties.  That part is know as the accord.  Execution of the "new" contract terms is deemed satisfaciton of the accord.  I saw one essay on this issue and of course comes up in the MBE's. 

Modification of contract concerns adding some new terms, changing terms, etc.  As you very well know, under the CL you need new consideration to support the modification while under the UCC, good faith is the requirment.

Modifications are changes to the same contract while accord and satisfaction is a new separate contract.  Hope this helps.  I'm sure someone will add to this but its how I see it. 


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Author: alejo [21237]
01 Feb 2010 09:31 PM
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alejo

I guess the main difference is that in K modification, consideration is required. But in a good faith modification between merchants, how is that different to an accord and satisfaction? Maybe it would be in the facts. Thank you.

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Author: samsnead [21237]
01 Feb 2010 09:33 PM
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samsnead

Dude

You need to separate common law and UCC

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Author: samsnead [21237]
01 Feb 2010 09:34 PM
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samsnead

Remove head from arse


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Author: alejo [21237]
02 Feb 2010 04:34 AM
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alejo

UCC and C-L has nothing to do whith this issue. Both A-S and K modification are equally applicable to the sale of goods and the sale of a piece of land. I did not see the difference between a K modification for the sale of potatos (no consideration is required) and and A-S between the same parties. I found later that A-s does not discharge the original aggreement, if the party does not perform according to the accord and satisfy, the other party can sue on the original K. Whereas in a K modification, the nonbreaching party doesn't have this option.
Thank you all, even you arse.

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Author: Brian Moquin [35] Send Private Message
02 Feb 2010 06:56 AM
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Brian Moquin

The most common scenario in which accord and satisfaction comes up on the bar exam is where one party refuses to pay the entire contract amount.  The most important factor to remember is that an accord proffered for less than the full amount is not a valid accord unless there is an actual dispute regarding the remaining amount.  Thus, if I get an invoice from American Express and don't dispute any of the charges but put "Payment in Full" on my check to them for a lesser amount, it will not operate as an accord:  AmEx can cash the check but I will still be liable for the difference.

Brian


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Author: CA bar passer [21237]
03 Feb 2010 04:11 AM
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CA bar passer

CA had a whole PT devoted to Accord & Satisfaction. I hate PT's, but this one was a good way to teach you the law on that topic.

So for the CA bar takers, practice that one as a PT and it will double as a refresher on A-S. Brian hit the nail on the head according to that PT.

I always used A-S was for the negotiation of a K that had already been performed and the parties were fighting about payment, whereas K mod is typically where the pool contractor finds bedrock below your new swimming pool and never installs the pool until after the K has been modified. Timing gives it away pretty easily, but there might be examples when that does not always apply.

Brian's smart. Alex, I'll take Accords for $500, please.

Seriously, you do need to know that failure to complete the new deal (the Satisfaction part of A&S) means the first contract is still enforceable. Only by completing the Satisfaction does the Accord (agreement to consider the first contract void) does the first contract become unenforceable. Better know that part cold.

Alex, I'll take Good Faith UCC Mod's for $800, please.

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Author: alejo [21237]
03 Feb 2010 12:16 PM
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alejo

What year is that PT? and in the summer or winter? I would like to do it. Thanks!

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Author: JNC [21237]
06 Feb 2010 03:28 AM
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JNC

Also, keep in mind that if a debt is due and payable but the debtor offers repayment as an accord that is LESS than the full amount, but what is offered is in a form that is different than the original item offered (ie, a gold watch worth $500 to pay back a $600 debt, when the debtor originally agreed to pay back $600 in dollars), then the accord is valid. The variance in the form of the item being offered is sufficient consideration. The accord must still be satisfied to discharge the original debt and the accord.

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Author: belandrei [300] Send Private Message
06 Feb 2010 07:28 PM
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belandrei

  • mutual rescission if there is performance still remaining from each party - "let's call it off" UCC requires writing (UCC §2-209); (not after K performed, house already painted)

 

  • subsequent modification;
  • novation: mutual agreement to substitute new party in K; (,novation agreement is of both parties and original party is excused, in delegation promisee can sue delegator and delagatee.
  • UCC good faith modification;
  • substitute K that discharges old K;
  • accord & satisfaction or account stated "alright, let's settle this";

Accord and Satisfaction (substituted performance)

You need to know (i) what an accord is and what a satisfaction is and (ii) the effect of the making of the accord, and (iii) the effect of getting no satisfaction.

 

1. MEANING OF "ACCORD", "SATISFACTION", accord question will have an agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation satisfaction that different performance. D borrows $1,000 from C and agrees to pay the loan with interest. Later D and C agree that IF D delivers 20 widgets by the end of the month, THEN the debt will be excused. Is this an accord? Yes

2. Effect of accord AND SATISFACTION

If the new agreement ('the accord) is performed (satisfaction), then performance of the original obligation is excused.

D borrows $1,000 from C and agrees to pay the loan with interest. Later D and C agree that IF D delivers 20 widgets by the end of the month, THEN the debt will be excused, D delivers the 20 widgets before the end of the month. $1,000 debt? What result? Excused b/c both accord and satisfaction.

If the accord is not performed, then the other party can sue on either the original obligation or the accord but not both: D borrows 1000 from C and agrees to pay the loan with interest. Later, D and C agree that if D delivers goods at the end of the month than his debt would be excused. D doesn't deliver. Yes, C can recover on either, but not both. Compare:

D borrows $1000 from C and agrees to repay the loan with interest. Later D and C agree that he D will deliver 20 widgets at the end of the month instead of paying 1000 with interest. D doesn't deliver. Can C sue for original loan agreement? No, it is excused by substituted agreement

 

 

 

 

  • unilateral discharge by obligee - "you don't have to do it"

IMPRACTICALITY: Performance excused if more expensive/difficult to render performance then when K was made. Requires unforeseeable circumstance; impractical w/ respect to original K consideration, obligor did not assume risk. UCC - liberal, no foreseeability required.

condition subsequent: Occurrence releases D.


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Author: Mona [21237]
06 Feb 2010 08:41 PM
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Mona

Thanks so much Belandrei!

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