O.C.G.A. § 11-2-107 (2019)
Goods to be severed from realty; recording
(1) A contract for the sale of timber, minerals, or the like (including oil and gas) or a structure or its materials to be removed from realty is a contract for the sale of goods within this article if they are to be severed by the seller but until severance a purported present sale thereof which is not effective as a transfer of an interest in land is effective only as a contract to sell. (2) A contract for the sale apart from the land of growing crops or other things attached to realty and capable of severance without material harm thereto but not described in subsection (1) of this Code section is a contract for the sale of goods within this article whether the subject matter is to be severed by the buyer or by the seller even though it forms part of the realty at the time of contracting, and the parties can by identification effect a present sale before severance. (3) The provisions of this Code section are subject to any third party rights provided by the law relating to realty records, and the contract for sale may be executed and recorded as a document transferring an interest in land and shall then constitute notice to third parties of the buyer’s rights under the contract for sale.
History
Code 1933, § 109A-2-107, enacted by
Ga. L. 1962, p. 156, § 1; Ga. L. 1978, p. 1081, § 5.
Annotations
JUDICIAL DECISIONS Applicability of the Georgia Commercial Code to a contract for dirt. - Article 2 of the Georgia Commercial Code, O.C.G.A. § 11-2-101 et seq., applied to a contract because the sale of goods, the dirt which the seller offered to furnish to the buyer, was the predominant purpose of the contemplated transaction. Furthermore, the trial court did not err in putting the question of predominant purpose to the jury because the evidence permitted a rational jury to resolve this issue in a way that would lead to a conclusion that the sale of goods under O.C.G.A. § 11-2107(1) was the predominant purpose of the contemplated transaction. Paramount Contr. Co. v. DPS Indus., 309 Ga. App. 113, 709 S.E.2d 288, 2011 Ga. App. LEXIS 209 (2011), cert. denied, No. S11C1216, 2011 Ga. LEXIS 607 (Ga. Sept. 6, 2011). Contract for sale of standing timber to be severed before title passes. - A contract of sale for timber which is attached to the soil, but which is presently to be severed and converted into personalty before title passes to purchaser, is an executory sale of personalty, and not of an
interest in land. Pope v. Barnett, 45 Ga. App. 59, 163 S.E. 517, 1932 Ga. App. LEXIS 161 (1932) (decided prior to adoption of Uniform Commercial Code). Contract for sale of milk. - Although quantity was unknown at time seller agreed to sell, the contract was binding on seller where amount of “milk base” was determinable under standards set by federal government. The agreement was much like an offer under O.C.G.A. § 11-2-107(2) to purchase a growing crop, for while the exact quantity is not known, it is ascertainable and determinable. Hale v. Higginbotham, 228 Ga. 823, 188 S.E.2d 515, 1972 Ga. LEXIS 945 (1972). Dirt was a good. - Dirt was a “good” only if the dirt was severed from the land by the seller, O.C.G.A. § 11-2-107(1), so the separation of fill dirt from the land was a necessary component of the sale of dirt, not the dirt’s transportation to a construction site after sale. Paramount Contr. Co. v. DPS Indus., 309 Ga. App. 113, 709 S.E.2d 288, 2011 Ga. App. LEXIS 209 (2011), cert. denied, No. S11C1216, 2011 Ga. LEXIS 607 (Ga. Sept. 6, 2011).
RESEARCH REFERENCES Am. Jur. 2d. 67 Am. Jur. 2d, Sales, §§ 54 to 59. U.L.A. Uniform Commercial Code (U.L.A.) § 2107. ALR. Pavement, flooring, platform, walks, and the like as fixtures, 13 A.L.R. 1454. Rights of parties to a timber contract upon failure of purchaser to remove timber within time fixed or within a reasonable time, 42 A.L.R. 641; 71 A.L.R. 143; 164 A.L.R. 423. Storage tank or other apparatus of gasoline station as fixture, 52 A.L.R. 798; 99 A.L.R. 69. Sale of standing timber as affecting judgment or other lien upon the land, 122 A.L.R. 517. Term “land” or “real property” employed in contract or conveyance as covering mineral interests constructively severed from the land, 123 A.L.R. 848.
Right to partition in kind of mineral or oil and gas land, 143 A.L.R. 1092. Mistake as to existence, practicability of removal, or amount of minerals as ground for relief from mineral lease, 163 A.L.R. 878. Construction of deed of undivided interest in land, as to fractional interest in oil, gas, or other minerals, or in royalty, reserved or excepted, 163 A.L.R. 1132. Basis of computation of cotenant’s accountability for minerals and timber removed from the property, 5 A.L.R.2d 1368. Sale or contract for sale of standing timber as within provisions of statute of frauds respecting sale or contract of sale of real property, 7 A.L.R.2d 517. Revocation of license to cut and remove timber as affecting rights in respect of lumber cut but not removed, 26 A.L.R.2d 1194. Construction and effect of provision in timber deed or contract that lands shall be
cut over only once, or the like, 57 A.L.R.2d 827. Size and kind of trees contemplated by contracts or deeds in relation to standing timber, 72 A.L.R.2d 727. Construction of oil and gas lease as to the lessee’s right and duty of geophysical
or seismograph exploration or survey, 28 A.L.R.3d 1426. What constitutes “goods” within the scope of UCC Article 2, 4 A.L.R.4th 912. Applicability of UCC Article 2 to mixed contracts for sale of goods and services, 5 A.L.R.4th 501.
PART 2 FORM, FORMATION, AND READJUSTMENT OF CONTRACT Cross references. Rules for interpretation of contracts generally, § 13-2-2.
Elements and formation of contracts generally, T. 13, C. 3.