- 13 - release between JTF and petitioners before the check was issued, there may have been such a mutual understanding between JTF and the Pellegris prior to the issuance of the check.4 Petitioners reasonably could have believed that there was a mutual understanding between JTF and the Pellegris before the issuance of the checks to Pellegri Sr. and to petitioners and that the mutual understanding would be imputed to petitioners, thereby creating an accord and satisfaction under California Civil Code section 1526(c). Although we believe that California Commercial Code section 3311, discussed above, states the California law relevant to this case, we note that the common law of California would govern if no statute applied. Under the common law of California, the elements of accord and satisfaction are: (1) A bona fide dispute between the parties; (2) a clear expression by the debtor that what he tendered was subject to the condition that it was to be in full satisfaction of the creditor’s unliquidated claim; and (3) a clear understanding by the creditor when accepting what was 4The release indicates that it was signed by Stephen Pellegri on 11/02/99 and for JTF on 11/03/99. The check from JTF to Pellegri is dated 11/02/99. The check from Pellegri to Roseann Miller is dated 11/01/99. Neil Phillips’s letter concerning the amount of the loss computation is undated, but a page of supporting data indicates fax transmission on 11/05/99. The record does not disclose the date of any oral agreement between the Pellegris and JTF. The meeting between petitioners and Pellegri Sr., when Pellegri Sr. presented his check to petitioners and showed them Phillips’s report, took place on 11/12/99.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011