Legal Question in Civil Litigation in Washington

Does original (1st) contract or 2nd contract prevail when 2nd is breached?

When an agreement is replaced by a 2nd [settlement] agreement, and the 2nd agreement is breached without any portion having ever been carried out by the breaching party, which agreement(s) can be enforced by the non-breaching party (when the 2nd agreement is silent on this point)?


Asked on 5/14/06, 6:30 pm

1 Answer from Attorneys

Elizabeth Powell ELizabeth Powell PS Inc

Re: Does original (1st) contract or 2nd contract prevail when 2nd is breached?

What you are describing is the end, somehow, of an original contract, and a subsequent 'accord and satisfaction'.

However, in order for the second to prevail, it would need to be in writing. If it was an oral agreement modifying a written agreement there would be very few ways to show the existence of the second agreement.

One way is partial performance. There is also a concept called equitable estoppel which makes enforcement more likely or possible.

That said, your question as framed is almost impossible to answer. I hope this helps. Elizabeth

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Answered on 5/14/06, 8:28 pm


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