O.C.G.A. § 13-1-2 (2019)

Annotations

JUDICIAL DECISIONS 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). 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).

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

RESEARCH REFERENCES Vendee’s right to recover amount paid under executory contract for sale of land, 59 ALR 189; 102 ALR 852; 134 ALR 1064. Right of vendee under executory contract to bring action against third person for damage to land, 151 ALR 938. Enforceability, as between parties, of an executory agreement made in fraud of creditors, 172 ALR 1121. Moral obligation as consideration for contract - modern trend, 8 ALR2d 787. Right of vendee under executory land contract to lien for amount paid on purchase price, 33 ALR2d 1384; 82 ALR3d 1040. Mechanic’s lien based on contract with vendor pending executory contract for sale of property as affecting purchaser’s interest, 50 ALR3d 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 ALR3d 1040.

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 ALR 1299; 79 ALR 1346; 8 ALR2d 787. Agreements in relation to exchange or remittance as within statute of frauds, 19 ALR 1140. Claim in receivership for breach of contract which was still executory when receiver was appointed, 33 ALR 508. Assignability of contract to furnish all of buyer’s requirement or to take all of seller’s output, 39 ALR 1192. Right of purchaser to acquire and assert outstanding title as against vendor, 40 ALR 1078. Right of vendee under an executory land contract to a lien for amount paid on the purchase price, 45 ALR 352; 33 ALR2d 1384; 82 ALR3d 1040. Bankruptcy or insolvency of corporation as affecting its executory contract for the sale of its own stock, 46 ALR 1172.