PJC Business

PJC 101.28

C ONTRACTS

PJC 101.28 Defenses—Instruction on Modification Failure to comply with a term in an agreement is excused if the parties agreed that a new term would take its place. COMMENT When to use. PJC 101.28 is appropriate if the defendant claims he was excused from complying with a term of the agreement because the parties had agreed to modify the agreement by substituting a new term for an old term. See Hathaway v. General Mills, Inc. , 711 S.W.2d 227, 228 (Tex. 1986) (parties have power to modify their con tracts); Mandril v. Kasishke , 620 S.W.2d 238, 244 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.) (parties have power to make and modify contracts). A modification must satisfy the elements of a contract: a meeting of the minds supported by consideration. Hathaway , 711 S.W.2d at 228. The question of whether a modification has taken place is one of fact and depends on the intent of the parties. Hathaway , 711 S.W.2d at 228– 29. Burden of proof. The burden of proving modification rests on the party asserting the modification. Hathaway , 711 S.W.2d at 229. UCC article 2 cases. An agreement modifying a sales contract needs no consid eration to be binding, but any modification must meet the test of good faith imposed by the Code. Tex. Bus. & Com. Code §2.209(a) & cmt. 2 (Tex. UCC). See El Paso Natural Gas Co. v. Minco Oil & Gas, Inc. , 8 S.W.3d 309, 314 (Tex. 1999). Accord and satisfaction and novation. For instructions on accord and satisfac tion and novation, see PJC 101.29 and 101.27.

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