1. CHAPTERCHAPTER McGraw-Hill/Irwin©2008 The McGraw-Hill Companies, All Rights Reserved Changes by Agreement of the Parties TWELVETWELVE

2. 12-2 Objectives Chapter Objectives: Use properly vocabulary regarding changes in contact terms or performance Identify when consideration is necessary for the change(s) Determine a party’s right to sue and when it is waived by the subsequent agreement Differentiate among the five types of agreements that can alter the terms of performance

3. 12-3 Objectives This chapter will examine HOW parties can terminate the contractual relationship by making changes to the existing agreement and, WHAT terms must be included in order to effectuate the valid and enforceable termination

4. 12-4 Renegotiation of the contract, in an attempt to salvage what they can of the agreement, can take many forms, all of which avoid recourse to the court system The incentive to reach a “new” agreement lies in the costly and time-consuming nature of litigation and/or the parties’ need to maintain their relationship Renegotiation of the Contract

5. 12-5 These methods of reformation include: 1.Mutual rescission 2.Release 3.Accord and satisfaction 4.Substituted agreement/novation 5.Modification Renegotiation of the Contract

6. 12-6 Mutual rescission –An agreement by mutual assent of both parties to terminate the contractual relationship and return to the pre-contract status quo Mutual Rescission

7. 12-7 If both parties agree to surrender their respective rights under the contract without holding the other “at fault,” or responsible in any way, then they have mutually rescinded the contract The agreement to terminate the contract must be mutual; both parties, through words or actions, must assent to the abandonment of the performance obligations Mutual Rescission

8. 12-8 A mutual rescission also acts as a c ovenant not to sue for breach as it acknowledges that there has been consent by both parties to forgo any legal remedies Mutual Rescission

9. 12-9 Release –A discharge from the parties’ performance obligations that acknowledges the dispute but forgoes contractual remedies –Where a release is involved, there is a dispute as to the obligations of one or both parties. –The release and accompanying covenant not to sue acknowledge that there are unresolved questions of obligation and liability but do not impose a contractual remedy Release

10. 12-10 There are a few rules regarding releases –The first is logical: the release, to be enforceable, must be in writing –This is not a Statute of Frauds issue but rather one of proof of intent Release

11. 12-11 There are a few rules regarding releases –The second falls under the rules of construction. A release is construed in favor of the releasing party –The words should be specific with regard to the rights that are relinquished and refer to the clear intent of the parties to give up those rights –There must be a clear indication that a party intended to release the potentially breaching party from liability Release

12. 12-12 Accord and satisfaction –An agreement to accept the imperfectly proffered performance as a fulfillment of the contractual obligations –One or both parties state that they have not received what they bargained for, but they cannot come to any agreement as to the deficiency –Instead of resolving the dispute in court, the parties “ agree to disagree ” Accord and Satisfaction

13. 12-13 The parties come to an accord (amicable arrangement) that the different nonconforming performance will satisfy the originally required performance An accord and satisfaction must comply with all the requirements for any contractual agreement, which means that the parties must intend to enter into this kind of settlement of their dispute Accord and Satisfaction

14. 12-14 Forgoing a legal right to sue –Valid consideration as it has recognized legal value to support a contractual obligation Accord and Satisfaction

15. 12-15 Substituted agreement –Replacement of a previous agreement with a new contract with additional but not inconsistent obligations –The subsequent contract alters the obligations but does not directly contradict them Substituted Agreement/Novation

16. 12-16 Merger –Combining previous obligations into a new agreement Substituted Agreement/Novation

17. 12-17 Novation –An agreement that replaces previous contractual obligations with new obligations and/or different parties –A novation is the only way to “switch out” the parties to the contract –The contract is “made new” by transferring the duties of the old party to the new one Substituted Agreement/Novation

18. 12-18 There are rules or conditions that must exist for a valid novation: 1.There must be a legally binding present obligation that has not been breached Substituted Agreement/Novation

19. 12-19 There are rules or conditions that must exist for a valid novation: 2.All parties to the arrangement must consent to the substitution of the new party Substituted Agreement/Novation

20. 12-20 There are rules or conditions that must exist for a valid novation: 3.The new obligations must rest solely on the new party, extinguishing liability of the old party. There must be a clear intent to extinguish the previous liability of the parties Substituted Agreement/Novation

21. 12-21 Modification –A change or addition in contractual terms that does not extinguish the underlying agreement –Freedom to contract includes the freedom to modify the parties’ rights and obligations –All three requirements of a valid contract (offer, acceptance, and consideration) must be present

22. 12-22 Modification Requiring consideration to be present when modifying a contract ensures that there is a valid bargain made regarding the change Without consideration, the proposed modification is a new offer to enter into a new and different contract and terminate the previous contract

23. 12-23 Modification There is an exception for transactions between merchants, in order to facilitate commerce and ensure speedy transactions, merchants, in the course of business, may modify existing contracts without consideration for the change

24. 12-24 Summary Changes to a contract can take several forms, including: 1.Mutual rescission- wherein the parties decide that the contract is no longer worth pursuing. Both parties surrender their rights and no fault is assigned to nonperformance 2.Release- where the party having a right to sue for nonperformance voluntarily relinquishes that right. This is often accompanied by a covenant not to sue based on the defective or nonexistent performance

25. 12-25 Summary Changes to a contract can take several forms, including: 3.Accord and satisfaction -where the parties agree the tendered performance is “good enough” and change the original contract to reflect the actual occurrence 4.Substituted agreement- where the parties merge the old agreement into a new one

26. 12-26 Summary Changes to a contract can take several forms, including: 5.Novation- wherein one party steps completely out of the transaction and a new party is substituted for the departing party. The agreement is made new by the replacement 6.Modification -wherein the parties mutually assent to change the terms of the contract and this modification is supported by consideration