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.
Georgia business lawyer explains: Implied Warranties in Georgia: What if a merchant sells you a product “as is” that turns out to be defective? Is there anything you can do?
Under Georgia law the answer is perhaps. First, if the seller made an express warranty to you (such as claiming that the product was new or in great condition and it turned out to be defective) they cannot get out of honoring that express warranty to you despite disclaiming an implied warranty. In City Dodge, Inc. v. Gardnere , 232 Ga. 766, 208 S.E.2d 794 (1974), the Georgia Supreme Court said that an express warranty that the car dealer made was not negated even though the car dealer sold the car “as is” in the purchase agreement.
Additionally, even if a seller has sold you a defective product “as is” you can “revoke the acceptance” as soon as the product is delivered to you. Esquire Mobile Homes, Inc. v. Arrendale, 182 Ga. App. 528, 356 S.E.2d 250 (1987). The Georgia Court of Appeals has stated that revocation of acceptance under O.C.G.A. § 11-2-608 is an available remedy even where the seller has attempted to limit its warranties .
What is “Revocation of Acceptance?” Revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under O.C.G.A. § 11-2-316. See Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439, 419 S.E.2d 520 (1992).
A buyer must pay at the contract price for any goods accepted. Ga. Code Ann. § 11-2-607(1). However, a buyer is entitled to accept or reject goods which fail to conform to the contract by rejecting or accepting the whole, or by accepting any commercial unit or units (Ga. Code Ann. § 11-2-105(6)), and rejecting the rest. Ga. Code Ann. § 11-2-601. Acceptance occurs when, after a reasonable opportunity to inspect the goods, the buyer indicates the goods are conforming or that he will take them despite the nonconformity, or the buyer acts in a manner inconsistent with the seller’s ownership. Ga. Code Ann. § 11-2-606. Acceptance of any part of a commercial unit is acceptance of the whole unit. Ga. Code Ann. § 11-2-606(2).
So how do I revoke acceptance? Within a reasonable time after delivery or tender, you the buyer are entitled to reject nonconforming goods under the provisions of Ga. Code Ann. § 11-2-602 if you seasonably (that means timely) notifiy the seller of your rejection. Moreover, even after acceptance, you the buyer have a right to revoke acceptance under the provisions of Ga. Code Ann. § 11-2-608 for nonconformance that substantially impairs the value of the goods. (For example the car you bought blew up or the bags of rice you purchased are filled with rat droppings) Griffith v. Stovall Tire &c. Inc., 174 Ga. App. 137, 139 (329 S.E.2d 234) (1985)
Most importantly, revocation is an available remedy even where the seller has attempted to limit its warranties by use of “as is” language under Ga. Code Ann. § 11-2-316.
Consequently, we have discussed two ways to seek remedy even when the seller disclaimed the implied warranty. First, if an express warranty was made, the implied warranty disclaimer is negated. Second, even if there was an implied warranty disclaimer, the buyer can still “revoke acceptance” if the goods don’t conform as to what was expected and you notify the seller in a timely manner or if the goods are so bad that they substantially impair the value of the goods, you can still revoke the acceptance even after acceptance has been made.
Other grounds for seeking remedy even if an implied warranty has been disclaimed are actions for fraud, deceit, negligent misrepresentation, and our favorite cause of action—the Georgia Fair Business Practices Act.
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Georgia Contract Lawyer explains: When you are sold a product in Georgia, the product is generally covered by something called an “implied warranty.” This means the seller (who needs to be a regular merchant for the type of goods he sold you) warranties that what they’ve sold you is okay for use. The legal terminology is that they are warranting that the product they sold you is “fit for the ordinary purpose that the good is generally used for.”
The only way that a seller can get out of such an implied warranty is if he tells you (the consumer) before he actually sells you the product that he is selling it “as is” i.e. without a warranty.
Let’s look at what the law states under OCGA § 11-2-314 about implied warranties:
Georgia Contract Lawyer discusses that In order to sue for a contract in Georgia, you need to have legal standing to sue. Another fancy word for this is called “privity.” The doctrine of privity of contract provides that only a party to a contract has standing to sue to enforce it, even if the contract confers benefits on others.
Simply put, that means you must have an actual vested, legal interest in the contract before you have a right to sue to enforce it. The same goes for someone who might be trying to sue you to enforce a contract. This means, if their names are not on the contract, then you better be sure that they actually have a vested legal right to sue you as a party to the contract .
O.C.G.A. §9-2-20 makes it very clear that “as a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.”
For over 100 years, the Georgia Supreme Court has stated that the action on a contract must generally be brought in the name of the party in whom the legal interest in such a contract is vested. O’Leary v. Costello, 169 Ga. 754, 151 S.E. 487 (1930). Consequently, the proper parties are the parties who in regard to the subject matter of the contract, have given consideration or exchanged mutual promises of performance. American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978).
In 2009, Judge Miller, Judge Barnes, and Judge Andrews of the Georgia Court of Appeals addressed this issue and ruled that:
” the trial court erred in granting an assignee summary judgment against a debtor to collect the amount owed on a credit card account agreement the debtor allegedly entered into with an assignor because the assignee failed to show that it was entitled to file suit to recover the outstanding debt against the debtor pursuant to O.C.G.A. § 9-11-17(a); the assignee relied on the affidavit of its agent and business records custodian of its credit card accounts to show that the assignor transferred to it all rights and interests to the debtor’s account, but the affidavit failed to refer to or attach any written agreements that could complete the chain of assignment from the assignor to the assignee, and although the assignee contended that the debtor did not raise its failure to present a valid assignment in the trial court, the record reflected that that issue was squarely before the trial court because the assignee directly addressed the debtor’s defense under § 9-11-17 in its motion for summary judgment, referring to the affidavit to show that it was the assignee. Wirth v. Cach, LLC, 300 Ga. App. 488, 685 S.E.2d 433 (2009).
This simply means that if a corporation or person is a party suing on a contract, but their names are not on the contract—they need to show evidence that the rights and interests were transferred to them, or “assigned”. If the evidence isn’t there, they likely have no legal standing to sue.
Therefore, if you are dealing with a contractual lawsuit, you need to be certain that both parties have the legal standing to sue. If you are currently faced with a business dispute or a breach of contract issue, a good Georgia lawyer can help you navigate these complex legal issues.
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