How does acceptance of a unilateral agreement differ from that of ordinary agreement?

Cashing of check implied agreement...?

• I live in Van Nuys, California (Los Angeles County). I gave my landlord (a property management company)a check for my June 2005 rent - $100 short of what it usually is. On the memo part of the check I sited reduction of services as the reason for deducting $100. (It was June and we had been without a pool since long before Memorial Day weekend. The city had condemned the pool...). Anyhow - the property management company cashed the check. I assumed because they cashed the check that implied agreement and acceptance of it. The following month I did the same thing and my check was returned, and a letter to pay rent or quit was issued. I felt lucky for getting $100 off the previous month so I paid my rent in full. Now, 3 months later, my landlord wants $100 (what I had deducted from June 2005) plus the current months rent or I will be evicted - despite the fact that the property management company CASHED that check. My question is this: If the property management company cashed the check, doesn't that, in effect, make it a done deal? A contract per se? Doesnt that IMPLY that they accepted the terms of my payment? Yikes, help!

• Answer:

  Dear mmmelly-ga; Thank you for allowing me an opportunity to answer your interesting question. Let me start by reminding you of our disclaimer that says we cannot provide legal advice in this forum. What I am about to tell you is merely the result of research about a matter of published law for you to consider and consult an attorney about. Anything here that might be construed as advice...isn?t ? it?s merely my unlicensed opinion (which is the best we can do under the circumstances). As for your question...in some case you are right; cashing a check does indeed imply agreement. It is, however more complicated than that (as I?m sure you?ve probably guessed already). In statutory jargon ?implied agreement? you are referring to is technically known as an ?ACCORD AND SATISFACTION?. Many states recognize UNIFORM COMMERCIAL CODE (UCC) 3-311 ?ACCORD AND SATISFACTION BY USE OF INSTRUMENT? as their basis of law. UNIFORM COMMERCIAL CODE 3-311 ?ACCORD AND SATISFACTION BY USE OF INSTRUMENT? http://www.law.cornell.edu/ucc/search/display.html?terms=3-311&url=/ucc/3/article3.htm#s3-311 However, don?t let the phrase ?uniform law? confuse you: ?The phrase "Uniform Laws" can be misleading. Upon approval by the National Conference a Uniform Law is not law anywhere in the United States. It is simply a legislative proposal addressed to fifty state legislatures. During the history of the Conference, roughly half its proposals have not been adopted by a single state.? UNIFORM LAWS http://www.law.cornell.edu/uniform/uniform.html Keep all this in mind because we?ll revisit this code briefly in a moment? California does have it?s own civil code that addresses ?accord and satisfaction? and fortunately it?s actually much simpler than the UCC?s recommended version. California Civil Code 1526 states: ?(a) Where a claim is disputed or unliquidated and a check or draft is tendered by the debtor in settlement thereof in full discharge of the claim, and the words "payment in full" or other words of similar meaning are notated on the check or draft, the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests against accepting the tender in full payment by striking out or otherwise deleting that notation or if the acceptance of the check or draft was inadvertent or without knowledge of the notation. (b) Notwithstanding subdivision (a), the acceptance of a check or draft constitutes an accord and satisfaction if a check or draft is tendered pursuant to a composition or extension agreement between a debtor and its creditors, and pursuant to that composition or extension agreement, all creditors of the same class are accorded similar treatment, and the creditor receives the check or draft with knowledge of the restriction. A creditor shall be conclusively presumed to have knowledge of the restriction if a creditor either: (1) Has, previous to the receipt of the check or draft, executed a written consent to the composition or extension agreement. (2) Has been given, not less than 15 days nor more than 90 days prior to receipt of the check or draft, notice, in writing, that a check or draft will be tendered with a restrictive endorsement and that acceptance and cashing of the check or draft will constitute an accord and satisfaction. (c) Notwithstanding subdivision (a), the acceptance of a check or draft by a creditor constitutes an accord and satisfaction when the check or draft is issued pursuant to or in conjunction with a release of a claim. (d) For the purposes of paragraph (2) of subdivision (b), mailing the notice by first-class mail, postage prepaid, addressed to the address shown for the creditor on the debtor's books or such other address as the creditor may designate in writing constitutes notice.? CALIFORNIA CIVIL CODE 1526 http://www.aroundthecapitol.com/code/code.html?sec=civ&codesection=1521-1526 Now, back to that Uniform Commercial Code thing... UCC is a bit harder to interpret but it says essentially the same thing. The fact is that California adopted UCC 3-311 in 1992 without repealing California Civil Code 1526. This may be important to you because you now have two ?wordings? of essentially the same law to support your argument that what you had with your landlord, by virtue of his acceptance and cashing of your check and notation thereon, was an accord and satisfaction by use of an instrument. You may want to speak with an attorney about this because, like I said, we can?t provide legal advice in this forum. So, clearly IF the statutory requirements described above are met by you and were not met by your landlord, you may very well have a valid complaint. It may be a defense however on the part of your landlord that you were contractually bound to pay x-amount of rent or risk being evicted, regardless of the circumstances, if in fact that is the case in your contract. I don?t know that of course, but you understand what I?m saying, right? If the lease requires you to pay x-amount monthly and does not specifically make provisions for a reduction in rent due to a reduction of services, he MIGHT be able to claim that you failed to abide by the terms of the contract. In theory this COULD render your claim of accord and satisfaction a moot point What your landlord has a right to claim as his defense however is DEFINITELY something you?d need to see an attorney about just to be on the safe side. Especially if you plan to invest the time and money into filing a civil action over this. In my personal (unlicensed) opinion it?s hard to say how a court would rule because both of you ? to some extent - failed to act in accordance with the law: Where YOU erred (in my opinion): Cal. Civ Code 1526 Paragraph (a) states that the check tendered must have the words "PAYMENT IN FULL" or OTHER WORDS OF SIMILAR MEANING notated on it. -*-It would be up to a court to rule if your notation ?reduction of services? qualifies as ?other words of similar meaning? in lieu of the words ?payment in full?. Where HE erred (in my opinion): Paragraph (a) states ??the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests against accepting the tender in full payment by striking out or otherwise deleting that notation?? -*-He clearly accepted the check without protest (at least initially) and did not strike the notation, however, if he's clever, he COULD claim that ?the acceptance of the check or draft was inadvertent or without knowledge of the notation.? See what I mean? I fully agree that ?the principle of the thing? is always important, but if I may be so bold as to offer constructive advice (which you may take or leave) it may be prudent to sacrifice the $100 ?and? your principles rather than risking having to live in your car as winter approaches...But to each his own. I hope you find that my research exceeds your expectations. If you have any questions about my research please post a clarification request prior to rating the answer. Otherwise, I welcome your rating and your final comments and I look forward to working with you again in the near future. Thank you for bringing your question to us. Best regards; Tutuzdad ? Google Answers Researcher INFORMATION SOURCES Defined above SEARCH STRATEGY SEARCH ENGINES USED: Google ://www.google.com SEARCH TERMS USED: Implied agreement Check Cash Accord and satisfaction California Code Uniform Commercial Code Instrument