O.C.G.A. § 13-3-45 (2019)

Annotations

JUDICIAL DECISIONS If part of consideration of contract is illegal, contract is void. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). An attorney was prohibited from enforcing a client’s single promise to pay the attorney a lump-sum fee in the amount of ten percent of the sale price of the client’s property, after a part of the consideration for the client’s promise was illegal because the attorney was not a licensed real estate broker. Starr v. Robinson, 181 Ga. App. 9, 351 S.E.2d 238 (1986).

Reason that consideration, illegal in part, voids entire contract. - If part of consideration of contract be illegal, contract is void, reason being that every part of consideration is to be presumed to have had some effect in inducing party recipient of consideration to enter into contract. Brown v. Baer, 79 Ga. 347, 5 S.E. 72 (1887). Word ‘‘illegal’’ applies to contracts forbidden by public policy. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). Illegal consideration is act or forbearance,

contrary to law or public policy, or promise to such effect. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). Consideration involving action opposed to public policy is illegal and absolutely void. - If agreement binds either or both parties to do, or if consideration is to do, something opposed to public policy of state or nation it is illegal and absolutely void, however solemnly made. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). Illegal consideration is void, but consideration may be void, though not illegal. - A contract may have no consideration for part of promise, and one that has totally failed. In such cases, if it be possible to sever that part of contract founded on this void or defective consideration from good part, it may be done, and good part will stand. But if consideration for any part of it be illegal, whole contract is void. Illegality corrupts and vitiates whole, and courts will have nothing to do with it. Chandler v. Johnson, 39 Ga. 85 (1869). Courts will not aid either party to contract founded upon illegal or immoral consideration. - Neither a court of law nor a court of equity will lend the court’s aid to either party to a contract founded upon an illegal or immoral consideration. If the contract is executed, it will be left to stand. If it be executory, neither party can enforce the contract. Carter v. Butler, 71 Ga. App. 492, 31 S.E.2d 210 (1944), rev’d on other grounds, 198 Ga. 754, 32 S.E.2d 808 (1945). Neither court of law nor court of equity will lend aid to either party to contract founded upon illegal or immoral consideration. Wellmaker v. Roberts, 213 Ga. 740, 101 S.E.2d 712 (1958). Lower courts properly found that a poultry grower could not maintain claims for fraud and misrepresentation against a poultry integrator in connection with an oral contract because the contract was not enforceable in that the grower’s consideration for the contract involved the illegal act of false swearing. Blockum v. Fieldale Farms Corp., 275 Ga. 798, 573 S.E.2d 36 (2002). ‘‘Adulterous and/or fornicatious relationship as consideration.’’ - Because fornication and adultery are illegal, the trial court did not err in precluding the defendant from claiming that the consideration for the alleged contract with the decedent was an

‘‘adulterous and/or fornicatious relationship;’’ however, defendant should have had the right to present evidence of the relationship with the decedent in order to support defendant’s contention that no contract existed between them that required defendant to pay for decedent’s services because the services were provided gratuitously. Broughton v. Johnson, 247 Ga. App. 819, 545 S.E.2d 370 (2001). Illegality is defense to executory contract but cannot support action to recover back money paid. - If contract is illegal as against public policy, the contract’s invalidity is a defense while the contract remains unexecuted. If illegal contract is in part performed, and money has been paid in pursuance of the contract, no action will lie to recover money. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). Contract based on legal consideration which contains legal and illegal promises, valid as to former. - When agreement consists of single promise, based on single consideration, if either is illegal, the whole contract is void. But when agreement is founded on legal consideration containing a promise to do several things or to refrain from doing several things, and only some of the promises are illegal, those promises which are not illegal will be held to be valid. Roberts v. H. C. Whitmer Co., 46 Ga. App. 839, 169 S.E. 385 (1933). If a contract is otherwise based on sufficient legal consideration and also contains multiple promises which are divisible in containing a lawful agreement, coupled with a separable unlawful promise, any unenforceability of the latter will not affect the validity of the former agreement. Starr v. Robinson, 181 Ga. App. 9, 351 S.E.2d 238 (1986); Circle Appliance Leasing, Inc. v. Appliance Whse., Inc., 206 Ga. App. 405, 425 S.E.2d 339 (1992). The trial court properly granted summary judgment to a payee under the terms of a settlement agreement to recover funds owed for a preexisting debt, despite the fact that a confidentiality provision contained therein was void for public policy reasons, as the consideration supporting the payment provision was separate and apart from the confidentiality provision. Unami v. Roshan, 290 Ga. App. 317, 659 S.E.2d 724 (2008).

If contract contains illegal and unenforceable clauses within restrictive covenant, entire covenant must fall. Wesley-Jessen, Inc. v. Armento, 519 F. Supp. 1352 (N.D. Ga. 1981). Conveyance, partly to secure debt, and partly to defraud creditors is void as to creditors. Parrott v. Baker, 82 Ga. 364, 9 S.E. 1068 (1889). Mother’s agreement to surrender infant child void as part consideration as being against public policy. - Agreement by mother to surrender possession of infant child, as part consideration for receipt of benefit for herself and her other children is void as being against public policy. Hanley v. Savannah Bank & Trust Co., 208 Ga. 585, 68 S.E.2d 581 (1952). Invalid lease provisions for free water and sewerage not fatal to remaining provisions. - Invalidity of clauses providing free water and free sewerage in lease of airport by county to private party was not fatal to remaining valid portions of lease. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850, 118 S.E.2d 234 (1960). Refinancing of prior loan which had been made in violation of the Georgia Industrial

Loan Act, O.C.G.A. § 7-3-1 et seq., did not invalidate promises and considerations of new note insofar as they related to new cash received by maker. Henson v. Dixie Fin. Corp., 250 Ga. 132, 296 S.E.2d 593 (1982). Cited in Houser v. Planters’ Bank, 57 Ga. 95 (1876); Brown v. Baer, 79 Ga. 347, 5 S.E. 72 (1887); Frick & Co. v. Moore, 82 Ga. 159, 8 S.E. 80 (1888); Allen v. Pearce, 84 Ga. 606, 10 S.E. 1015 (1890); Bartow Guano Co. v. Adair, 29 Ga. App. 644, 116 S.E. 342 (1923); Stafford v. Birch, 189 Ga. 405, 5 S.E.2d 744 (1939); Pittsburgh Plate Glass Co. v. Jarrett, 42 F. Supp. 723 (M.D. Ga. 1942); Littlegreen v. Gardner, 208 Ga. 523, 67 S.E.2d 713 (1951); Iteld v. Karp, 85 Ga. App. 835, 70 S.E.2d 378 (1952); Morris v. Jones, 128 Ga. App. 847, 198 S.E.2d 354 (1973); Douglas v. Dixie Fin. Corp., 139 Ga. App. 251, 228 S.E.2d 144 (1976); Lowe v. Termplan, Inc., 144 Ga. App. 671, 242 S.E.2d 268 (1978); Morgan v. Hawkins, 155 Ga. App. 836, 273 S.E.2d 221 (1980); Llop v. McDaniel, Chorey & Taylor, 171 Ga. App. 400, 320 S.E.2d 244 (1984); Borison v. Christian, 257 Ga. App. 257, 570 S.E.2d 696 (2002).

RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, §§ 230, 231.

C.J.S. - 17 C.J.S., Contracts, § 130. 17A C.J.S., Contracts, § 288.