Focusing on the difference between a substitute contract and an executory accord (both modern and traditional) has been a bit difficult with three gorgeous deer sitting outside the window in the library and with Mika’s “Happy Ending” playing on my ipod. All this while the sun sets with the autumn leaves making the mountains in the background golden fire green.
Clark v. Elza, 286 Md. 208, 406 A.2d 922 (1979) is about the story of Clark (P) who got into a car accident with Elza (D). Elza was responsible and they were going to go to court. Prior to the trial date, both parties reached a settlement of $9,500. There was an oral agreement. The next day after the oral agreement, P went to a new doctor who told him that his injuries were much graver than had originally be thought.
P comes back and sends the unexecuted agreement to D along with a letter stating that he rejects the settlement agreement and will go through with the trial.
Long story short, they get to the Court of Appeals of MD. D states that it is an executory accord, essentially something short of an actual contract. The original contract (the trial) is still in play and if the lender (Clark) doesn’t like how the accord is going, he can alway bring back the first contract.
D argues that it is a substitute contract and that the first contract has been relinquished. The court determines that this is incorrect because unless it is explicitly on the new agerement, the courts will always side with the notion of an executory accord.
However, P is talking about the traditional rule of the accord. The modern rule states that the original claim is suspended until D breaches the new claim. Which in this case, totally sucks for Clark because he made his deal when he was under the impression that his medical bills would be a certain amount and only found out a day later that this assumption was incorrect.
Unfortunately the court determines that unless D breaches his payment of $9,500, P can’t take him to court on the original claim.
And then the ninjas attacked.