O.C.G.A. § 13-4-22 (2019)
Effect of refusal of party to perform concurrent condition upon offer of performance by other party
Where the conditions as to performance of a contract are concurrent, if one party offers to perform and the other refuses to perform, the first shall be discharged from the performance of his part of the contract and may maintain an action against the other. (Civil Code 1895, § 3708; Civil Code 1910, § 4302; Code 1933, § 20-903.)
History of Code section. - This Code section is derived from the decision in Ensign v. Sharp, 72 Ga. 708 (1884).
Annotations
Law reviews. - For note, ‘‘Contingency
Financing Clauses in Real Estate Sales Contracts in Georgia,’’ see 8 Ga. L. Rev. 186 (1973).
JUDICIAL DECISIONS Party voluntarily placing oneself in position where one cannot perform releases other party from any further duty to comply with contingencies as condition precedent to suit. Rollins v. Gault, 153 Ga. App. 781, 266 S.E.2d 560 (1980). Rescission of contract must go to the whole. There can be no rescission of the contract in part. Baker v. Corbin, 148 Ga. 267, 96 S.E. 428 (1918). Cited in Biggers v. Pace, 5 Ga. 171 (1848); Ensign v. Sharp, 72 Ga. 708 (1884); Collier v. Weyman & Connors, 114 Ga. 944, 41 S.E. 50
(1902); McLeod v. Hendry, 126 Ga. 167, 54 S.E. 949 (1906); Baker v. Corbin, 148 Ga. 267, 96 S.E. 428 (1918); Garrison Motor Co. v. Parrish, 52 Ga. App. 766, 184 S.E. 766 (1936); Gibbs v. H.T. Henning Co., 189 Ga. 675, 7 S.E.2d 238 (1940); James H. Craggs Constr. Co. v. King, 274 F.2d 1 (5th Cir. 1960); American Fletcher Mtg. Co. v. First Am. Inv. Corp., 463 F. Supp. 186 (N.D. Ga. 1978); Eastview Healthcare, LLC v. Synertx, Inc., 296 Ga. App. 393, 674 S.E.2d 641 (2009).
RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, §§ 321 et seq., 355 et seq., 359, 362. C.J.S. - 17A C.J.S., Contracts, § 345. ALR. - Presence of noxious weeds as ground for rescission of contract for purchase of land, 2 ALR 511. Motive as affecting the exercise of a contractual right, as between parties to the contract, 25 ALR 977. Party who insisted that contract be performed notwithstanding total breach or re-
pudiation by other party as entitled to change his position and decline to perform on his own part, where other party did not proceed with performance or otherwise alter his position in reliance on a supposition of performance, 143 ALR 489. Measure or basis of attorney’s recovery on express contract fixing noncontingent fees, where he is discharged without cause or fault on his part, 54 ALR2d 604.