Do I have a contract? Is my contract enforceable? These are all questions that our clients sometimes ask. Today’s article will discuss the definition of what a contract is in Georgia.
What is a Contract?:
Under Georgia law, O.C.G.A. § 13-1-1, a contract requires: 1. Two parties, 2. An agreement, 3. Agreeing to do or not do a specific thing.
Georgia landlord tenant law is an area that is important to many of our clients. Whether you are a homeowner having to deal with a nightmare tenant who won’t pay their bills, or whether you are a tenant having to deal with a nightmare landlord who won’t keep your home in repair—it is important to understand your legal rights in either situation.
In today’s article we will discuss the notice requirements a landlord must give a tenant prior to eviction:
In Georgia, unless required by the lease, a landlord is generally not required to provide notice prior to filing what is known as a “dispossessory proceeding” which is a fancy term for taking back possession of the property. It is important for both landlords and tenants to carefully check the lease agreement to see what in fact it does say about the notice requirement in order to make sure they comply with the contractual lease agreement to protect themselves from a breach of contract claim.
Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is “Generally no.”
Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from “buyers remorse” and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.
In general, home sellers are protected from home buyers who later try to rescind the sales agreement by a number of Georgia doctrines. Today’s article, the final in a three part series discusses the Doctrine of Merger by Deed:
Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is “Generally no.”
Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from “buyers remorse” and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.
In general, home sellers are protected from home buyers who later try to rescind the sales agreement by several Georgia doctrines. Today’s article will discuss the Doctrine of Merger.:
Under Georgia law, can a home buyer sue a seller who is unhappy with the house? Unless the house seller is also the house builder, the answer is “Generally no.”
Fortunately for sellers, the law in Georgia protects home owners who sell their house to people who later suffer from “buyers remorse” and want to sue them to rescind the sale. Unfortunately for buyers, unless the seller was also the home builder, there is not much you can do to rescind a sale agreement even if the home seller fraudulently misrepresented or hid a housing defect. Nevertheless, the law is very specific, so if you find yourself in this situation, time is of the essence and it is imperative you seek competent legal counsel right away to ascertain your rights.
In general, home sellers are protected from home buyers who later try to rescind the sales agreement by various Georgia doctrines. Today’s article discusses the Doctrine of Caveat Emptor:
Doctrine of Caveat Emptor:
The rule in Georgia is Caveat Emptor (let the buyer beware). This is a common law doctrine which serves as the general rule regarding the purchase of realty. Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818 (2009). If a home has mold, termites, a rotten roof, or any other defect—it is the buyer’s responsibility to fully investigate this prior to buying the home. In general, the buyer is put on warning and notice that they are responsible to discover such defects and if they discover them after the real estate transaction, unfortunately it is a case of too little, too late.
Consequently, the doctrine of Caveat Emptor defends and protects home sellers and our housing market from being “vexed to economic death by lawsuits by every purchaser of a house who discovers a defect which he believes the previous homeowner should have discovered and revealed. . . [when there] is probably no such thing as a perfect house” and all purchasers know that an older house is almost certainly not perfect. Cendant Mobility Financial Corp. v. Asuamah, 285 Ga. 818, 821 (2009). Thus, this affirmative defense often soundly defeats a buyers claims in a lawsuit.
Thus the morale of the story is Buyer Beware! Regardless, if you are a home seller who is being threatened by a lawsuit, or if you are a home buyer contemplating a lawsuit against a seller—the laws are very specific to one’s situation and it is absolutely important that you seek competent legal counsel as soon as possible in order to protect your rights.
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“Can I plead both fraud and breach of contract in suing over a business dispute?” is a question our business litigation clients sometimes ask.
You may be wrongly informed by the Defendant that you as a Plaintiff cannot plead both fraud and contract. Nevertheless, this is incorrect and flouts over forty years of Georgia law:
a. For over four decades Georgia courts have allowed a complaint to contain “as many separate claims against defendants as one may have, regardless of inconsistency. They may be based on legal grounds and equitable grounds, and may arise out of tort and also out of contract.” Giordano v Stubbs, 129 Ga. App. 283, 286 (1973).
b. A party may sue under one theory and recover under another if supported by the evidence. See Barnett v. Freeman, 157 Ga. App. 760.
c. An individual’s affirmation of a contract that he claimed he was induced to enter by fraud does not bar him from seeking damages because the two remedies are coexistent. Atlanta Car Wash, Inc. v. Schwab, 215 Ga. 319, 1959 Ga. LEXIS 463 Ga., September 11, 1959, decided.
d. It has been well established for decades in Georgia law that the Plaintiff can plead alternative theories of both breach of contract and fraud and is entitled to pursue inconsistent remedies until judgment. Accord Larkins, Ga. Contracts §3-18.
Consequently, there is no doubt: Georgia law absolutely permits Plaintiff to plead both fraud and breach of contract. Thus, even though these are two inconsistent remedies, as a matter of legal strategy a good business lawyer may utilize both causes of action in an effective legal pleading.
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“Can I enforce this contract?” “Can I get out of this contract?” “Is this contract enforceable?” These are all questions we often hear from clients. Under Georgia law, a contract does not exist nor is enforceable unless the parties agree on all “material” (that means essential, significant and substantial) terms.
The Georgia Court of Appeals recently addressed this issue in recent years in the case of Kitchen v. Insuramerica Corp., 296 Ga. App. 739, 675 S.E.2d 598 (2009). The contract dispute and subsequent lawsuit was between an employee by the name of Mr. Kitchen, and his former employer, Insuramerica Corporation. In this case, Mr. Kitchen sued his former company because he claimed that it had promised him a 25 percent interest in their subsidiary companies in exchange for his employment.
When a dispute arose concerning the parties agreement, the trial court ruled that the parties’ alleged agreement to transfer a 25 percent interest in the subsidiaries to the employee was unenforceable because the parties did not have a meeting of the minds on certain essential terms.
“Can I sue for a broken contract?” is a question many people asking when they need a good Georgia contract lawyer. Many times during contract disputes, clients often feel that “even though a particular obligation is not written within their contract with another person or entity, it’s common sense that that person or entity breached the contract by not performing a certain service, or acting a certain way.” Depending on what service, or what conduct, the client is referring to, he or she may have a point.
Over the years, Georgia courts have established that certain implied terms and duties may naturally flow from a contractual agreement, even if those implied terms and duties were not expressly written within the contract.
One of those implied duties is the duty of good faith and fair dealing, as Georgia courts have found: “[g]ood faith is, if anything, a minimum standard of conduct in any contract.” The term good faith has been found to mean “a shorthand way of saying substantial compliance with the spirit, and not merely the letter, of the contract.” That means that contrary to what many feel, the implied duty of good faith and fair dealing relates to the performance of a contract and not to the conduct that induced a person to enter into a contract. (Although if you were tricked into signing a contract you may have a claim against the person for fraud, amongst other claims.)
In addition, what’s important to understand about the implied duty of good faith and fair dealing is that determining what conduct constitutes good faith and fair dealing will depend on the facts of your case. You should also be mindful that an implied duty such as that of good faith and fair dealing cannot contradict an express term of a contract, and must be an “inference absolutely necessary to ensure that the intentions of the parties regarding the contract is respected.” In Georgia, this standard is not an easy one to meet and is strongly fact driven with respect to the language of the contract and the circumstances upon which the contract was entered.
Georgia Courts have been able to use the implied duty of good faith and fair dealing to find terms that were not expressed in the parties agreement in order to cure defects in contracts. This may or may not be advantageous to you, depending on your conduct.
What is certainly advantageous to you, however, is finding a good lawyer to deal with your contract dispute and issues.
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How do I get out of a contract? This is never an easy question. Many times we are asked: can I get out of (rescind) my contract? So today we would like to briefly discuss contract rescission is Georgia.
In Georgia, contract rescission has been held to be the complete abrogation (abolishment or cancellation) of a contract. The circumstances which allow parties to rescind a contract, generally, involve three (3) situations:
1. Both parties agree to rescind the contract, known as “mutual assent”;
2. The contract is rescinded because of fraud; or
3. A party (you) may be allowed to rescind a contract because the opposite party failed to perform in accordance with the contract terms.
If you are able to rescind your contract, it will be rescinded “at law” or “in equity.” Rescission “at law” applies to situations involving fraud, while rescission “in equity” involves the power of a court of equity to “undo” a contract.
We are often confronted with situations where a person wants to undo a contract because of fraud. If your claim is that someone fraudulently induced you to enter a contract, you have the option to either affirm the contract or sue in breach of contract. What is important for you to know is that in these types of cases Georgia courts require the defrauded party, you, to act with “promptness.” That means:
1. When you discover that you have been defrauded, you must act promptly to “restore or offer to restore to the other party (the party that you allege defrauded you] whatever he has received by virtue of the contract if it is of any value”; and
2. Upon discovery of the facts–that you have been a victim of fraud–at once announce your purpose to rescind the contract, and adhere to it.
Again, once you discover that you have been defrauded and take the position that you do not want to adhere to the contract, you should not waiver from that position. If you do waiver, and your action is interpreted as “affirming” the contract, despite the fact that you are claiming fraud, you will significantly impair your ability to rescind the contract at a later point. Once you lose or waive your right to rescind a contract, you most likely will not be able to revive that right.
In addition, if you do not act promptly upon discovering the alleged fraudulent conduct, but instead proceed with fulfilling certain obligations of the contract, or act in a manner inconsistent with your previous repudiation of the contract, a Georgia court may find that complaining about fraud during litigation is: too late.
There are more issues involved in contract rescission, especially those involving claims of fraud. And the issues are complex. You need a good lawyer who understands the law and its nuances and how to apply that law to the facts of your case, in order to maximize your position both at trial and the negotiating table.
We recommend that you contact a good lawyer, immediately, once you realize or think you have been defrauded with respect to a contract.
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As you know, people sign contracts everyday. Contracts solidify agreements between, friends, professionals, consumers, tenants and companies. That said, you may (or may not) be surprised to hear that the issue regarding the failure of one party to read a contract before signing it, comes up, frequently. Generally, the party that failed to read the contract has been a victim of fraud or mistake. So the question then becomes: does your failure to read a contract before signing it mean that you cannot recover because of fraud or mistake? The answer is not so easy, in Georgia.
Generally, Georgia law presumes that parties to a contract have read the contract before signing it. So when a party states that he or she failed to read a contract, Georgia courts first determine whether that person is literate or illiterate.
A literate person who fails to read a contract has a tough road, because he or she has to show:
(1) An emergency at the time of signing that would excuse the failure to read; or
(2) That the opposite party misled you by artifice or device (trickery) that prevented you from reading the contract; or
(3) That a fiduciary or confidential relationship existed between you and the opposite party upon which you relied in not reading the contract.
Be mindful that Georgia courts take this issue very seriously, so excuses such as “I was in a hurry,” or “I was too busy,” or “I forgot my reading glasses” will not suffice.
Moreover, even if you were able to prove that a confidential or fiduciary relationship existed (see number [3] above), you must show that you relied on that relationship in not reading the contract. That means: if a confidential relationship exist, but you failed to read the contract because you were in a hurry (not because of the confidential relationship), then you will most likely lose, before a court in Georgia. This all makes sense because whatever agreement you and another party deemed important enough to put in writing, should also be important enough to read before signing, at least in the opinion of Georgia courts, notwithstanding legal exceptions (see above).
Regarding an illiterate party, he or she may generally rely on the representations made by another party. However, to be safe, an illiterate person should have the contract read to him or her because, in Georgia, an illiterate party must exercise ordinary care in ascertaining the contents of a contract before signing it. This also applies to those parties who are unable to read English.
Ultimately, the facts of your case as they apply to Georgia law will strongly influence the outcome of your case. If you failed to read a contract and that failure has resulted in you being a victim of fraud or mistake, we suggest you contact a good lawyer.
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