O.C.G.A. § 13-1-2 (2019)
Contract defined - Executed and executory contracts
(a) An executed contract is one in which all the parties thereto have performed all the obligations which they have originally assumed.
(b) An executory contract is one in which something remains to be done by one or more parties.
History
(Orig. Code 1863, § 2677; Code 1868, § 2673; Code 1873, § 2715; Code 1882, § 2715; Civil Code 1895, § 3632; Civil Code 1910, § 4217; Code 1933, § 20-102.)
Annotations
JUDICIAL DECISIONS
Executed contract is one in which object of contract is performed, as where each does what each assumes to do, and nothing remains for either to do. Snellgrove v. Dingelhoef, 25 Ga. App. 334, 103 S.E. 418 (1920).
Executory contract, founded on no consideration, is nudum pactum and cannot be enforced. Lowe v. Bryant, 32 Ga. 235 (1861); Georgia Cas. & Sur. Co. v. Hardrick, 211 Ga. 709, 88 S.E.2d 394 (1955).
Courts will not intervene to disturb illegal executed contracts, or to enforce illegal executory contracts. Bugg v. Towner, 41 Ga. 315 (1870); Tufts v. DuBignon, 61 Ga. 322 (1878); Watkins v. Nugen, 118 Ga. 372, 45 S.E. 262 (1903).
A structured settlement agreement was not executory. In re Terry, 245 Bankr. 422 (Bankr. N.D. Ga. 2000).
Deed becomes an executed contract when signed and delivered. It is not essential that possession should be obtained under the deed. Watkins v. Nugen, 118 Ga. 372, 45 S.E. 262 (1903).
Contract, whereby title not to pass until purchase price paid and deed executed, was executory. - Contract whereby title to realty and personalty located thereon was not to pass and delivery of possession was not to be made until buyer paid purchase price and seller executed general warranty deed to property was mere executory agreement to sell and did not constitute sale. Hambrick v. Bedsole, 93 Ga. App. 192, 91 S.E.2d 205 (1956).
Claim for breach of executory contract. - To show a claim for breach of an executory contract, plaintiff must show plaintiff's own readiness and willingness to perform. Otherwise, the plaintiff would not be entitled to a judgment either for breach of contract or for a tort. James v. Mitchell, 159 Ga. App. 761, 285 S.E.2d 222 (1981).
Essentials of enforceable executory contract for future sale of commodity. - Executory contract for future sale of commodity not enforceable unless by its terms it is so intended, and there is mutuality of obligation and certainty as to subject matter and price. Tift v. Shiver & Aultman, 24 Ga. App. 638, 102 S.E. 47 (1919). See also Chickamauga Mfg. Co. v. Augusta Grocery Co., 23 Ga. App. 163, 98 S.E. 114 (1919).
Performance of contractual obligations. - Military truck refurbishing company's foreign corporate representative was entitled to summary judgment, where the representative performed the representatives's obligations under the contract, the contract was no longer executory, and the representative suffered compensatory damages as a result; therefore, the company was not entitled to a directed verdict. Commercial & Military Sys. Co. v. Sudimat, C.A., 267 Ga. App. 32, 599 S.E.2d 7 (2004).
Assignment of contract to reinsurance company not barred. - Trial court properly denied the appellant's motion to stay arbitration and granted the appellees' motion to compel arbitration because the assignment of the claims to the reinsurance company was valid and enforceable and, therefore, the reinsurance company could proceed as the sole claimant. McLarens Young Int'l, Inc. v. Am. Safety Cas. Ins. Co., 334 Ga. App. 819, 780 S.E.2d 464 (2015).
Cited in Shore Acres Properties, Inc. v. Morgan, 44 Ga. App. 128, 160 S.E. 705 (1931); Twin City Fire Ins. Co. v. Wright, 46 Ga. App. 537, 167 S.E. 891 (1933); Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552, 54 S.E.2d 608 (1949); Dowis v. Lindgren, 132 Ga. App. 793, 209 S.E.2d 233 (1974); In re Terry, 245 Bankr. 422 (Bankr. N.D. Ga. 2000); Cheeley Invs., L.P. v. Zambetti, 332 Ga. App. 115, 770 S.E.2d 350 (2015); Wallace v. Wallace, 345 Ga. App. 764, 813 S.E.2d 428 (2018), cert. denied, 2019 Ga. LEXIS 42, cert. denied, 2019 Ga. LEXIS 48 (Ga. 2019).
RESEARCH REFERENCES
Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, § 5.
C.J.S. - 17 C.J.S., Contracts, § 8.
ALR. - Moral obligation as a consideration for an executory promise, 17 A.L.R. 1299; 79 A.L.R. 1346; 8 A.L.R.2d 787.
Agreements in relation to exchange or remittance as within statute of frauds, 19 A.L.R. 1140.
Claim in receivership for breach of contract which was still executory when receiver was appointed, 33 A.L.R. 508.
Assignability of contract to furnish all of buyer's requirement or to take all of seller's output, 39 A.L.R. 1192.
Right of purchaser to acquire and assert outstanding title as against vendor, 40 A.L.R. 1078.
Right of vendee under an executory land contract to a lien for amount paid on the purchase price, 45 A.L.R. 352; 33 A.L.R.2d 1384; 82 A.L.R.3d 1040.
Bankruptcy or insolvency of corporation as affecting its executory contract for the sale of its own stock, 46 A.L.R. 1172.
Vendee's right to recover amount paid under executory contract for sale of land, 59 A.L.R. 189; 102 A.L.R. 852; 134 A.L.R. 1064.
Right of vendee under executory contract to bring action against third person for damage to land, 151 A.L.R. 938.
Enforceability, as between parties, of an executory agreement made in fraud of creditors, 172 A.L.R. 1121.
Moral obligation as consideration for contract - modern trend, 8 A.L.R.2d 787.
Right of vendee under executory land contract to lien for amount paid on purchase price, 33 A.L.R.2d 1384; 82 A.L.R.3d 1040.
Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.
Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.