TITLE 11 COMMERCIAL CODE

2A. Leases, 11-2A-101 through 11-2A-532.

ARTICLE 2A LEASES

11-2A-528. Lessor's damages for nonacceptance, failure to pay, repudiation, or other default.

Except as otherwise provided with respect to damages liquidated in the lease agreement (Code Section 11-2A-504) or otherwise determined pursuant to agreement of the parties (Code Sections 11-1-302 and 11-2A-503), if a lessor elects to retain the goods or a lessor elects to dispose of the goods and the disposition is by lease agreement that for any reason does not qualify for treatment under Code Section 11-2A-527(2), or is by sale or otherwise, the lessor may recover from the lessee as damages for a default of the type described in Code Section 11-2A-523(1) or 11-2A-523(3)(a), or, if agreed, for other default of the lessee, (i) accrued and unpaid rent as of the date of default if the lessee has never taken possession of the goods, or, if the lessee has taken possession of the goods, as of the date the lessor repossesses the goods or an earlier date on which the lessee makes a tender of the goods to the lessor, (ii) the present value as of the date determined under clause (i) of the total rent for the then remaining lease term of the original lease agreement minus the present value as of the same date of the market rent at the place where the goods are located computed for the same lease term, and (iii) any incidental damages allowed under Code Section 11-2A-530, less expenses saved in consequence of the lessee's default.
If the measure of damages provided in subsection (1) is inadequate to put a lessor in as good a position as performance would have, the measure of damages is the present value of the profit, including reasonable overhead, the lessor would have made from full performance by the lessee, together with any incidental damages allowed under Code Section 11-2A-530, due allowance for costs reasonably incurred and due credit for payments or proceeds of disposition.

(Code 1981, §11-2A-528, enacted by Ga. L. 1993, p. 633, § 1; Ga. L. 2015, p. 996, § 3B-10/SB 65.)

The 2015 amendment, effective January 1, 2016, substituted "(Code Sections 11-1-302" for "(Code Sections 11-1-102(3)" near the middle of subsection (1).

Editor's notes.

- Ga. L. 2015, p. 996, § 1-1/SB 65, not codified by the General Assembly, provides: "(a) This Act shall be known and may be cited as the 'Debtor-Creditor Uniform Law Modernization Act of 2015.'

"(b) To promote consistency among the states, it is the intent of the General Assembly to modernize certain existing uniform laws promulgated by the Uniform Law Commission affecting debtor and creditor rights, responsibilities, and relationships and other federally recognized laws affecting such rights, responsibilities, and relationships."

JUDICIAL DECISIONS

Where a lease agreement provided for liquidated damages and set forth a formula to calculate such damages, O.C.G.A. §§ 11-2A-527 and11-2A-528 did not apply; rather, the more general directives of O.C.G.A. § 11-2A-504, regarding liquidation of damages, were controlling. Carter v. Tokai Fin. Servs., Inc., 231 Ga. App. 755, 500 S.E.2d 638 (1998).

Damages liquidated in agreement.

- Where a lease financing agreement specifically set forth a formula to calculate damages, O.C.G.A. §§ 11-2A-527 and11-2A-528 were not applicable in an action on a deficiency claim arising out of the sale of collateral. Jamsky v. HPSC, Inc., 238 Ga. App. 447, 519 S.E.2d 246 (1999).

Erroneous finding or interpretation.

- Because the trial court did not find any material miscalculation of figures in an arbitrator's award, mistake in the award's descriptions, or imperfection in the form of the award, but refused to apply O.C.G.A. § 11-2A-529(1)(b), opting instead to apply O.C.G.A. § 11-2A-528(1)(ii), it substituted its judgment for that of the arbitrator, in violation of 9 U.S.C. § 11, as to whether a lessor had shown an inability to reasonably dispose of the leased equipment, and it penalized the lessor for not relitigating the issue at the trial court level, which amounted to reversible error. Lanier Worldwide, Inc. v. BridgeCenters at Park Meadows, LLC, 279 Ga. App. 879, 633 S.E.2d 49 (2006).

Cited in Summerhill Neighborhood Dev. Corp. v. Telerent Leasing Corp., 242 Ga. App. 142, 528 S.E.2d 889 (2000).

RESEARCH REFERENCES

U.L.A.

- Uniform Commercial Code (U.L.A.) § 2A-528.