O.C.G.A. § 13-3-5 (2019)

Annotations

Law reviews. - For article discussing the anachronistic nature of the Georgia contracts Code as dramatized by comparing the doctrine of consideration as it is formulated in the Restatements of Contracts and in

Code 1933, Title 20 (now this title), and the interpretative approach Georgia courts have taken in dealing with such Code, see 13 Ga. L. Rev. 499 (1979). (But see amendments by Ga. L. 1981, p. 876.)

JUDICIAL DECISIONS Consideration of contract must be moral and legal. If its consideration fails to meet either of these requirements, contract is not

enforceable. Baker v. American Oil Co., 90 Ga. App. 662, 83 S.E.2d 826 (1954). Impossibility does not amount to perfor-

mance save where it is set up as a defense. R.C. Craig, Ltd. v. Ships of Sea, Inc., 345 F. Supp. 1066 (S.D. Ga. 1972), later proceeding, 401 F. Supp. 1051 (S.D. Ga. 1975). Insurance policy provisions in violation of statute automatically rendered null and void by such statute. Curtis v. Girard Fire & Marine Ins. Co., 190 Ga. 854, 11 S.E.2d 3 (1940). Effect of impossibility not caused by act of God or of other party. - Where the plaintiff contracts to perform covenants that are impossible, not because of an act of God or the conduct of the defendant, the failure to perform such covenants is as fatal to the plaintiff ’s right to recover as a breach of the contract for any other reason. J.C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169, 279 S.E.2d 461 (1981). Effect of consent judgment. - Where A sues B on contract and they enter into

consent judgment, B cannot later set that judgment aside on basis of impossibility of performance overlooked by B. Leventhal v. Citizens & S. Nat’l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982). Promissory note held unenforceable. - Promissory note which was founded upon illegal consideration violated public policy and rendered the note unenforceable. Minor v. McDaniel, 210 Ga. App. 146, 435 S.E.2d 508 (1993). Cited in Golden v. National Life & Accident Ins. Co., 189 Ga. 79, 5 S.E.2d 198 (1939); Whitehead v. Cranford, 210 Ga. 257, 78 S.E.2d 797 (1953); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 152 S.E.2d 579 (1966); Builders Transp., Inc. v. Hall, 191 Ga. App. 889, 383 S.E.2d 341 (1989); Mitchell v. Lucas, 210 Ga. App. 821, 437 S.E.2d 792 (1993).

RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, §§ 10, 11. Am. Jur. Proof of Facts. - ‘‘Impossibility’’ of Performing Contract, 24 POF2d 269. C.J.S. - 17 C.J.S., Contracts, §§ 12, 141 et seq., 195. ALR. - Validity of agreement to pay an officer or employee of a bank or trust company to disclose the existence of, or to assist one to establish, a deposit, 18 ALR 979. Validity of provision in contract with corporation waiving liability of stockholders, 40 ALR 371. Validity of contract to influence administrative or executive officer or department, 46 ALR 196; 148 ALR 768. Validity of contract to influence third person with respect to disposal of property at death or by gift during lifetime, 61 ALR 646. Validity and effect of contract, unconnected with transfer of any business or professional interest, purporting to grant exclusive right to use one’s name or likeness for advertising purposes, 101 ALR 492. Conditions, conditional limitations, or contracts in restraint of marriage, 122 ALR 7. Obligation of owners who unite in contract relating to property which they own in severalty, as joint, several, or joint and several, 122 ALR 1336.

Rights of parties to contract the performance of which is interfered with or prevented by war conditions or acts of government in prosecution of war, 154 ALR 1445; 155 ALR 1147; 156 ALR 1446; 157 ALR 1446; 158 ALR 1446. Validity of contractual provision by one other than carrier or employer for exemption from liability, or indemnification, for consequences of own negligence, 175 ALR 8. Recovery of money or property entrusted to another for illegal purpose, but not so used, 8 ALR2d 307. Modern status of the rules regarding impossibility of performance as defense in action for breach of contract, 84 ALR2d 12. Purchaser’s right to set up invalidity of contract because of violation of state securities regulation as affected by doctrines of estoppel or pari delicto, 84 ALR2d 479. Validity, construction, and effect of contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 ALR2d 732. Rights between landlord and tenant as affected by zoning regulations restricting contemplated use of premises, 37 ALR3d 1018. Validity of exculpatory clause in lease exempting lessor from liability, 49 ALR3d 321.

Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 ALR3d 552.

Liability for interference with invalid or unenforceable contracts, 96 ALR3d 1294.

ARTICLE 2 CAPACITY OF PARTIES JUDICIAL DECISIONS Cited in Walker v. Walker, 209 Ga. 490, 74 S.E.2d 66 (1953). RESEARCH REFERENCES ALR. - Personal liability to other party to contract of member of firm who, without authority, attempts to bind the firm, 4 ALR 258. Parent’s approval or sanction of infant’s contract as affecting latter’s liability on, or right to disaffirm, it, 9 ALR 1030. Validity of contract by agent for compensation from third person for negotiating loan or sale with principal, 14 ALR 464. Intermarriage of parties as affecting contract for services, 14 ALR 1013. Enforceability by the purchaser of a business, of a covenant of a third person with his vendor not to engage in a similar business, 22 ALR 754.

Validity and enforceability of contract made in good faith with incompetent before adjudication of incompetency, 46 ALR 416; 95 ALR 1442; 95 ALR 1442. Personal liability of members of committee or board who make a contract in name of unincorporated religious society incapable of contracting, 61 ALR 241. Mistake by one party to contract as to identity of other party who acted in good faith, 147 ALR 1171. Validity of contract between corporations as affected by directors or officers in common, 33 ALR2d 1060.