PJC Business

C ONTRACTS

PJC 101.29

PJC 101.29 Defenses—Instruction on Accord and Satisfaction Failure to comply with an agreement is excused if a different performance was accepted as full satisfaction of performance of the original obligations of the agreement. COMMENT When to use. PJC 101.29 is appropriate to submit the affirmative defense of accord and satisfaction. This defense is raised by pleading and evidence that the plain tiff agreed to and accepted performance different from that of the original agreement, in full satisfaction of the original obligation. Jenkins v. Henry C. Beck Co. , 449 S.W.2d 454, 455 (Tex. 1969); see also Pileco, Inc. v. HCI, Inc. , 735 S.W.2d 561 (Tex. App.— Houston [1st Dist.] 1987, writ ref’d n.r.e.). If the plaintiff refuses to accept the defen dant’s performance of an executory accord, the defendant may seek to enforce the terms of the accord and satisfaction by specific performance but is not absolved of its obligation to perform under the accord and satisfaction. See Alexander v. Handley , 146 S.W.2d 740, 743 (Tex. Comm’n App. 1941, holding approved) (nonbreaching party to executory accord can choose to enforce the original agreement or seek enforcement of the agreement in accord and satisfaction); BACM 2001-1 San Felipe Road Ltd. Part nership v. Trafalgar Holdings I, Ltd. , 218 S.W.3d 137, 146 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (when debtor failed to perform under an executory accord, creditor could sue to recover under the original cause of action or the accord). If existence of accord is disputed. If existence of the accord is disputed, the above instruction should be accompanied by an instruction on the elements of agree ment, mutual assent, and, if appropriate, other elements of contract formation as sug gested in PJC 101.9, 101.12, 101.15, 101.16, and 101.33.

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