PRESENT: All the Justices 

GELLES & SONS GENERAL CONTRACTING, INC. 

v. Record No. 012319 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 13, 2002 

JEFFREY STACK, INC., T/A JSI 

PAVING & CONSTRUCTION, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

M. Langhorne Keith, Judge 

 Gelles & Sons General Contracting, Inc. (Gelles) appeals 

the trial court's final order, holding that its claim for 

additional monies allegedly due under its contract with Jeffrey 

Stack, Inc. (JSI) was barred by an accord and satisfaction 

pursuant to Code § 8.3A-311. Because we conclude that the trial 

court's factual determination, that a reasonable person would 

consider that JSI provided Gelles with a "conspicuous statement 

to the effect that the instrument was tendered as full 

satisfaction of the claim," was not clearly erroneous, we will 

affirm the judgment of the trial court. 

 Through a series of oral agreements, Gelles agreed to 

provide brick laying work on JSI's construction project. Gelles 

submitted invoices totaling $91,932 for its work. JSI paid 

Gelles $70,486. In response to Gelles' invoice for a balance of 

$26,175, JSI sent Gelles a schedule of account on December 8, 

2000, reflecting a balance remaining of only $13,580 after 

adjustments made for work and materials provided by JSI "in 

order to properly complete the work." In a December 11 
facsimile transmittal Gelles disagreed with JSI's statement of 

account and requested payment of the full amount invoiced. On 

December 13, 2000, JSI sent Gelles a letter detailing the 

deficiencies in Gelles' work. The final paragraph of the letter 

stated, "JSI Paving and Construction stands by its final amounts 

as stated on the latest correspondence dated December 8, 2000. 

Enclosed, please find a check in the amount of $13,580.00 

representing final payment on the contract." Gelles negotiated 

JSI's check for that amount.

 Gelles filed a motion for judgment against JSI and its 

bonding company, North American Specialty Insurance Company 

(NASIC), for $26,000 plus interest, asserting that it was 

entitled to the entire unpaid balance. JSI and NASIC filed a 

plea in bar, claiming that Gelles' action was barred by an 

accord and satisfaction pursuant to Code § 8.3A-311. 

 After an evidentiary hearing on the plea in bar, the trial 

court concluded that the requirements set out in Code § 8.3A311(a)-(b) had been met, that there was an accord and 

satisfaction, and entered an order dismissing Gelles' motion for 

judgment. We awarded Gelles this appeal. 

DISCUSSION

 Code § 8.3A-311 provides in pertinent part: 

 (a) If a person against whom a claim is asserted 

proves that (i) that person in good faith tendered an 

instrument to the claimant as full satisfaction of the 

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claim, (ii) the amount of the claim was unliquidated 

or subject to a bona fide dispute, and (iii) the 

claimant obtained payment of the instrument, the 

following subsections apply. 

 (b) . . . the claim is discharged if the person 

against whom the claim is asserted proves that the 

instrument or an accompanying written communication 

contained a conspicuous statement to the effect that 

the instrument was tendered as full satisfaction of 

the claim. 

Gelles maintains that the statement in JSI's December 13 letter 

that the check submitted by JSI represented "final payment on 

the contract" did not meet the requirements of Code § 8.3A311(b) because it was neither conspicuous nor sufficiently clear 

to inform a reasonable person that cashing the check constituted 

a settlement of the claims between the parties. 

 Conspicuous, as defined in Code § 8.1-201(10), means a term 

or clause that a reasonable person "ought to have noticed." 

This definition describes a physical attribute of the statement, 

not the content or meaning conveyed by the statement. 

Therefore, the manner in which the statement is displayed is the 

focus of the inquiry. According to Code § 8.1-201(10), whether 

a term or clause is conspicuous, as required by Code § 8.3A311(b), is a decision to be made by the court. 

 There is no statutory requirement, found in Code § 8.1-

201(10) or elsewhere, that the term or clause must be displayed 

in specific type or in any other distinguishing manner. While 

asserting that the statement in issue is not conspicuous, Gelles 

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presents little support for this assertion, suggesting rather 

that "[t]he most important question" is whether the statement 

adequately relayed JSI's intent to tender the check in full 

satisfaction of Gelles' claim. Under these circumstances, we 

find no basis for rejecting the trial court's determination that 

the statement at issue was "conspicuous" for purposes of Code 

§ 8.3A-311(b). 

 The crux of Gelles’ argument on appeal is that the language 

at issue would not clearly inform a reasonable person that the 

check was being offered in full satisfaction of the claim. As 

noted in the official comment, Code § 8.3A-311 "follows the 

common law" with only "minor variations to reflect current 

business conditions." Thus, common law principles regarding the 

nature of the offer are relevant to applying the doctrine of 

accord and satisfaction as codified in Code § 8.3A-311. 

 Under the common law, an accord and satisfaction requires 

both that the debtor intend that the proffered amount be given 

in full satisfaction of the disputed claim and that the claimant 

accept that amount in accordance with the debtor's intent. 

Virginia-Carolina Elec. Works, Inc. v. Cooper, 192 Va. 78, 80-

81, 63 S.E.2d 717, 719 (1951). The acceptance need not be 

express, but may be implied. Id., 63 S.E.2d at 719. In Mercury 

Insurance Co. v. Griffith, 178 Va. 9, 18, 16 S.E.2d 312, 315 

(1941), we explained that the giving and acceptance of a check 

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is prima facie evidence that the check constituted "payment in 

full" of the disputed account and that acceptance of the check 

"merely placed the burden of proof upon the [claimant]." "The 

acceptance of a check on which appears 'in full of account,' or 

words of like import, does not in fact close the account unless 

it was accepted with intelligent appreciation of its possible 

consequences, coupled with knowledge of all relevant facts." 

Id. at 20, 16 S.E.2d at 316. 

 Code § 8.3A-311 codifies these principles in subsections 

(a) and (b). Thus, once the requirements of those subsections 

are met, an accord and satisfaction is presumed. The party 

challenging the accord and satisfaction may rebut this 

presumption. Unlike the common law, however, the statute 

requires the claimant to overcome the presumption by satisfying 

an objective rather than a subjective test, that is, would a 

reasonable person have considered that the "instrument was 

tendered as full satisfaction of the claim?" See Webb Bus. 

Promotions, Inc. v. American Electronics & Entertainment Corp., 

617 N.W.2d 67, 76 (Minn. 2000) (applying the UCC and holding 

that the presumption is rebutted if the claimant shows that a 

reasonable person would not have understood that the payment 

meant to discharge the obligation). 

 We now turn to the application of these principles to the 

facts of this case. First, Gelles urges that this Court adopt 

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"clear guidelines" for language that is sufficient to give rise 

to the presumption under the statute. The statute itself, 

however, by describing the required statement as one "to the 

effect" that the tender will satisfy the debt, necessarily 

contemplates that no specific language is required and that each 

case must be considered on its own merits. Additionally, if a 

claimant has any misgivings about the nature of the tender, Code 

§ 8.3A-311(c)(2) allows the claimant to repay the creditor 

within 90 days and nullify the accord and satisfaction. This 

statutory scheme protects a claimant and is inconsistent with a 

requirement that only certain language will invoke the 

presumption. 

The trial court concluded in this case that the evidence 

presented a prima facie case of an accord and satisfaction under 

the statute. In rejecting Gelles' arguments that the language 

at issue was ambiguous and would not lead a reasonable person to 

conclude that the tender of the check by JSI in its December 13 

letter was intended as full satisfaction of Gelles' claim, the 

trial court properly looked at the circumstances of the 

transaction and the conduct of the parties. See John Grier 

Constr. Co. v. Jones Welding & Repair, Inc., 238 Va. 270, 272-

73, 383 S.E.2d 719, 721 (1989). The fact finder, in this case 

the trial court, found that a reasonable person could not have 

considered the language of the December 8 and 13 letters "was 

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anything other than" an expression of JSI’s intent that the 

check and letter proffered on December 13 was, "in effect, a 

drop-dead letter that says, 'This is it. This is what we're 

going to pay you.' " Further, the trial court specifically 

stated that Gelles' evidence that its president did not think 

the language meant full satisfaction of the claim was not 

credible. We cannot say that, on this record, these factual 

findings were clearly erroneous. 

 The record supports the trial court's finding that the 

entire course of conduct and communications between these 

parties made clear that JSI offered the $13,580 as the final 

payment that it intended to make and that JSI considered that 

amount to represent the proper accounting under the contract. 

JSI's December 8 and December 13 letters to Gelles, taken 

together, made express JSI's position that it would pay no more 

under the contract than the $13,580 check that it included with 

the December 13 letter. Nothing in the language of the December 

8 and 13 letters qualified JSI's decision to "stand[] by its 

final amounts." 

 Accordingly, for the reasons stated above, we will affirm 

the judgment of the trial court. 

Affirmed.

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