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Execution of Accord

The failure to make a payment or otherwise perform an act required by an agreement entered into in satisfaction of a claim leaves such an agreement a mere executory accord, except where the rule has been changed by statute.[i]  Such an executory accord is unenforceable and will not bar an action on the original obligation.[ii]

Generally, an unexecuted accord is not a satisfaction.  The original obligation is not discharged unless it is fully performed.[iii]  The defense of accord and satisfaction fails if there is no performance under the new agreement, since there is no satisfaction.[iv]

[i] Condo v. Mulcahy, 88 A.D.2d 497, 454 N.Y.S.2d 308

[ii] Zenith Drilling Corp. v. Internorth, Inc., 869 F.2d 560 (10th Cir. 1989)

[iii] Kalman v. Perry, 1999 Mass. App. Div. 1, 1999 WL 16327 (1999).

[iv] Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. Dist. Ct. App. 2d Dist. 2000).

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