Don’t Put Yourself In The Position Of Defending Against An Accord And Satisfaction Defense

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In Construction Consulting, Inc. v. The District Board of Trustees of Broward College, a contractor was in a payment dispute with a public owner regarding separate projects under a master services agreement.

October 10, 2022
David Adelstein - Florida Construction Legal Updates

The doctrine of accord and satisfaction lives and breathes in disputes including construction disputes. Unfortunately, a contractor, in the case discussed below, found out the hard way after it cashed checks that were accompanied with a letter that clearly indicated the checks were final payment. Once those payments were cashed, there was no “buyer’s remorse” that would allow it to still pursue disputed amounts. Remember this the next time you accept and cash a payment that says on the check it is full and final payment OR is accompanied by a letter that makes clear the payment is full and final payment. If you cash it, there is no second bite out of the apple, so to speak. If you are not interested in the payment being full and final payment, return the check. If you are not sure, either return the check or inquire and get that response in writing. Don’t put yourself in the position of defending against an accord and satisfaction defense.

Even without the doctrine of accord and satisfaction, the contract between the contractor and owner discussed below made clear that contractor’s acceptance of final payment meant that contractor was unconditionally waiving other claims against the owner, further reinforcing that there would be no second bite out of the apple.

The morale:

(1) read the letter that accompanies a check and do NOT cash a check that indicates it is for final payment unless you are prepared to accept that amount; and

(2) read your contract to understand any contractual obligation that kicks-in with the acceptance of final payment.

Mr. Adelstein may be contacted at dma@kirwinnorris.com



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