O.C.G.A.
O.C.G.A.

O.C.G.A. § 11-2-209 (2019)

Modification, rescission, and waiver

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(1) An agreement modifying a contract within this article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

(3) The requirements of the statute of frauds section of this article (Code Section 11-2-201) must be satisfied if the contract as modified is within its provisions.

(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) of this Code section it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

History

Code 1933, § 109A-2-209, enacted by Ga. L. 1962, p. 156, § 1.

Annotations

Cross references. Effect of mutual departure from contract terms, § 13-4-4. Law reviews. For article discussing exclusion or modification of warranties under the U.C.C., see 1 Ga. St. B.J. 191 (1964).

For note, “The Scope and Meaning of Waiver in Section 2-209 of the Uniform Commercial Code,” see 5 Ga. L. Rev. 783 (1971). For article, “Impracticability As Risk Allocation: The Effect of Changed Circumstances upon Contract Obligations for the Sale of Goods,” see 22 Ga. L. Rev. 503 (1988).

JUDICIAL DECISIONS Test of good faith for modifications. - Effective use of bad faith to escape performance on original contract terms is barred, and extortion of “modification” without legitimate commercial reason is ineffective as a violation of duty of good faith. Fratelli Gardino v. Caribbean Lumber Co., 587 F.2d 204, 1979 U.S. App. LEXIS 17875 (5th Cir. 1979). Waiver of breach. - One having accepted benefits arising under contract after being notified of anticipated breach,

and not having given notice of intention to rely on its exact terms, but having continued to accept benefits thereunder, may not recover for such alleged breach or failure to perform fully order the complete terms of the original agreement. Acceptance of such benefits after notice of an alleged breach will constitute waiver of breach. B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870, 234 S.E.2d 702, 1977 Ga. App. LEXIS 2102 (1977).

RESEARCH REFERENCES Am. Jur. 2d. 15A Am. Jur. 2d, Commercial Code, § 4. 67 Am. Jur. 2d, Sales, §§ 348-374. Am. Jur. Pleading and Practice Forms. 6 Am. Jur. Pleading and Practice Forms, Commercial Code, § 2:60. 9A Am. Jur. Pleading and Practice Forms, Estoppel and Waiver, § 39. C.J.S. 37 C.J.S., Frauds, Statute of, § 232.

77A C.J.S., Sales, § 109 et seq. 78 C.J.S., Sales, § 565. U.L.A. Uniform Commercial Code (U.L.A.) § 2209. ALR. Promise of additional compensation for completing building or construction contract, 25 A.L.R. 1450; 55 A.L.R. 1333; 138 A.L.R. 136. Necessity of independent consideration

to support a modification of the price in a contract of sale, 34 A.L.R. 511. Consideration for modification of terms of existing tenancy, 43 A.L.R. 1451; 93 A.L.R. 1404. Duty to minimize damages by accepting offer modified by party who has breached contract of sale, 46 A.L.R. 1192. Action involving rescission or right to rescind contract and to recover amount paid thereunder as one at law or in equity, 95 A.L.R. 1000. Action based on rescission of contract as one arising on contract, express or implied, within the meaning of attachment statute, 95 A.L.R. 1028. Pecuniary damage as essential to rescission of contract for purchase of real or personal property, 106 A.L.R. 125. Repossession of chattels by seller upon their return or abandonment by buyer as effecting a mutual rescission or as evidence thereof, 106 A.L.R. 703.

Requirement of written contract as condition of mechanic’s lien as affected by an oral modification, or a modification partly oral and partly written, of a written contract, or a subsequent modification in writing not registered or filed as required by statute, 108 A.L.R. 434. Timeliness of tender or offer of return of consideration for release or compromise, required as a condition of setting it aside, 53 A.L.R.2d 757. Validity and effect of provision in contract against mechanic’s lien, 76 A.L.R.2d 1087; 75 A.L.R.3d 505. Enforceability of voluntary promise of additional compensation because of unforeseen difficulties in performance of existing contract, 85 A.L.R.3d 259. Affirmations or representations made after the sale is closed as basis of warranty under UCC § 2-313(1)(a), 47 A.L.R.4th 189.

Notes of Decisions
Cited in 6 cases (1 in the last 5 years), 1983–2024 · leading case: Integrated Micro Sys., Inc. v. NEC Home Elec. (USA), Inc., 329 S.E.2d 554 (Ga. Ct. App. 1985).
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Integrated Micro Sys., Inc. v. NEC Home Elec. (USA), Inc., 329 S.E.2d 554 (Ga. Ct. App. 1985). · cites it 4× “However, the evidence of record is not dispositive of this issue and presents questions of fact as to whether NEC's actions in this case during and subsequent to IMS's negotiations with Bio-Lab amounted to a waiver of the dealer agreement provisions barring IMS from sales to…”
Authentic Architectural Millworks, Inc. v. SCM Grp. USA, Inc., 586 S.E.2d 726 (Ga. Ct. App. 2003). · cites it 2× “The “confirmation” that was created and sent by SCM four days later was not a confirmation of an oral contract that could be used to satisfy the Statute of Frauds under OCGA § 11-2-201 (2) and then as evidence of the terms to which the parties agreed under OCGA § 11-2-207 (2).”
Dan Gurney Indus., Inc. v. Se. Wheels, Inc., 308 S.E.2d 637 (Ga. Ct. App. 1983). “” However, we find that the agreement between the parties is outside of the Statute of Frauds due to partial performance of the agreement under OCGA § 11-2-201 (3) (Code Ann.”
Dixie Amusement, LLC v. Primero Games, LLC (Ga. Ct. App. 2024). · cites it 10× “First, Primero contends that Section 2-207 does not apply because this is not a “battle of the forms”; instead, the signing of a credit card authorization form by Dixie’s CEO on May 16, 2016, agreeing to be bound by the Terms of Service, amounted to a binding modification under…”
Amatulli Imports, Inc. v. House of Persia, Inc., 383 S.E.2d 192 (Ga. Ct. App. 1989). · cites it 2× “Notwithstanding appellant’s contentions as to appellee’s original acceptance of the rugs, the undisputed evidence of record shows that, subsequent to the second shipment, it entered into a signed written agreement which modified the terms of the original sales contract as to…”
Flowers Ginning Co v. ARMA, Inc. (4th Cir. 1997). “Summers, Uniform Commercial Code § 1-6 at 56 (3d ed.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.