O.C.G.A. § 13-5-11 (2019)

Annotations

JUDICIAL DECISIONS Cited in Ellis v. Von Kamp, 100 Ga. App. 60, 110 S.E.2d 97 (1959); Stein Steel &

Supply Co. v. Briggs Mfg. Co., 110 Ga. App. 489, 138 S.E.2d 910 (1964).

RESEARCH REFERENCES Am. Jur. 2d. - 17 Am. Jur. 2d, Contracts, § 399. C.J.S. - 17A C.J.S., Contracts, § 520.

ALR. - Doctrine of part performance as applied to contract embracing more than one subject matter, 38 ALR 693.

Acceptance of principal sum as affecting right to interest, 100 ALR 96. May part performance or part payment which will take oral contract out of statute of frauds be predicated upon giving up present position, employment, business or profession, or opportunities in that field, 125 ALR 399. Liabilities or risks of loss arising out of contract for repairs or additions to, or installations in, existing building which, without

fault of either party, is destroyed pending performance, 28 ALR3d 788. Limitation to quantum meruit recovery, where attorney employed under contingent fee contract is discharged without cause, 92 ALR3d 690. Limitation to quantum meruit recovery where attorney employed under contingent fee contract is discharged without cause, 56 ALR5th 1.

ARTICLE 2 STATUTE OF FRAUDS

Law reviews. - For comment on the statute of frauds, see 47 Emory L.J. 253 (1998). JUDICIAL DECISIONS Statute of frauds is no bar to claim of unjust enrichment. - In an action for restitution for improvements to property under a theory of unjust enrichment, the statute of frauds did not affect such a claim since unjust enrichment applies when there is no legal contract. Smith v. McClung, 215 Ga. App. 786, 452 S.E.2d 229 (1994). When possession and valuable improvements were relied upon, for specific performance they must have been by virtue of and on faith of oral contract or promise, so as to take case out of statute of frauds and constitute equivalent of a writing by showing acts

unequivocally referring to alleged contract or promise. The burden rests on alleged promisee to bring the promisee’s case within these facts, if the promisee did not show other exceptions under former Code 1933, § 37-802 (see O.C.G.A. § 23-2-131) and without such proof the promisee was not entitled to specific performance. Taylor v. Cureton, 196 Ga. 28, 25 S.E.2d 815 (1943). Cited in McKee v. Cartledge, 79 Ga. App. 629, 54 S.E.2d 665 (1949); Hudson v. Venture Indus., Inc., 243 Ga. 116, 252 S.E.2d 606 (1979).

RESEARCH REFERENCES Am. Jur. Proof of Facts. - Terms of Oral Contract with Decedent, 39 POF2d 91. Act of God, 6 POF3d 319. Establishing the Part Performance Exception to the Statute of Frauds in Real Estate Transactions, 55 POF3d 441. ALR. - Right of beneficiary to enforce contract between third persons to provide for him by will, 2 ALR 1193; 33 ALR 739; 73 ALR 1395. Effect of the statute of frauds upon the right to modify, by subsequent parol agreement, a written contract required by the statute to be in writing, 17 ALR 10; 29 ALR 1095; 80 ALR 539; 118 ALR 1511. Statute of frauds: warranty or guaranty in

respect of the subject-matter of a contract between third persons, which does in terms embrace such an obligation, 19 ALR 1033. Agreements in relation to exchange or remittance as within statute of frauds, 19 ALR 1140. Admission by pleading of a parol contract as preventing pleader from taking advantage of the statute of frauds, 22 ALR 723. Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within the statute of frauds, 22 ALR 735. Agreement to release, discharge, or assign real estate mortgage as within statute of frauds, 32 ALR 874.

Accepting paid employment or remaining in such employment as part performance which will take oral contract to convey or devise real property out of statute of frauds, 40 ALR 223. Rights of parties under oral agreement to buy land or bid it in at judicial sale for another, 42 ALR 10; 135 ALR 232; 27 ALR2d 1285. Necessity and sufficiency of consideration for modification of real estate broker’s contract, 42 ALR 987. Promise by other than the principal to indemnify a surety as one to answer for the debt, default, or miscarriage of another, 68 ALR 347. May part performance of oral contract to convey be predicated upon possession or improvement by one spouse of real property of other, 74 ALR 218. Promise to pay another’s antecedent debt in consideration of agreement to cancel it as within statute of frauds as a promise to pay debt default or miscarriage of another, 74 ALR 1025. Undelivered deed or escrow, pursuant to oral contract, as satisfying statute of frauds, 100 ALR 196. Agreement to be bound jointly with another for the obligation covered by an existing contract on which latter is liable as within provision of statute of frauds relating to promise to answer for debt, default, or miscarriage of another, 101 ALR 1252. Option for renewal or extension of contract for a year or less as affecting applicability of statute of frauds or other public regulation regarding contracts not to be performed within a year, 111 ALR 1105. Acceptance which will satisfy statute of frauds where purchaser of goods is in possession at time of sale, 111 ALR 1312. Parol lease for term of a year to commence in future as within statute of frauds, 111 ALR 1465. May part performance or part payment which will take oral contract out of statute of frauds be predicated upon giving up present position, employment, business or profession, or opportunities in that field, 125 ALR 399. Part performance to take oral contract of lease out of statute of frauds predicated upon acts or conduct of one in possession of the property under another contract or right, 125 ALR 1468.

Signing of contract or memorandum by agent of undisclosed principal as satisfying statute of frauds, 138 ALR 330. Sufficiency as regards statute of frauds of description of oil and gas lease in written contract or memorandum for sale or assignment of the same, 141 ALR 814. Brokerage or agency contract concerning real property as within statute of frauds, 151 ALR 648. Check or note as memorandum satisfying statute of frauds, 153 ALR 1112. Manner of pleading statute of frauds as defense, 158 ALR 89. Oral agreement restricting use of real property as within statute of frauds, 5 ALR2d 1316. Check as payment within contemplation of statute of frauds, 8 ALR2d 251. Undelivered lease or contract (other than for sale of land), or undelivered memorandum thereof, as satisfying statute of frauds, 12 ALR2d 508. Broker’s right to commission where customer repudiates or fails to complete contract or promise which is oral or not specifically enforceable, 12 ALR2d 1410. Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 ALR2d 1330. Question, as one of law for court or of fact for jury, whether oral promise was an original one or was a collateral promise to answer for the debt, default, or miscarriage of another, 20 ALR2d 246. Rights of parties under oral agreement to buy or bid in land for another, 27 ALR2d 1285. Oral acceptance of written offer by party sought to be charged as satisfying statute of frauds, 30 ALR2d 972. Validity and effect of promise not to make a will, 32 ALR2d 370. Real-estate broker’s right to recover in quantum meruit for services although contract is not in writing as required by statute, 41 ALR2d 905. Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 ALR2d 991. Enforceability, under statute of frauds provision as to contracts not to be performed within a year, or oral employment contract for more than one year but specifically made

terminable upon death of either party, 88 ALR2d 701. Liabilities or risks of loss arising out of contract for repairs or additions to, or installations in, existing building which, without fault of either party, is destroyed pending performance, 28 ALR3d 788. Sufficiency, under statute of frauds, of description or designation of property in real-estate brokerage contract, 30 ALR3d 935. Promissory estoppel as basis for avoidance of statute of frauds, 56 ALR3d 1037. Exceptions to rule that oral gifts of land

are unenforceable under statute of frauds, 83 ALR3d 1294. Construction and application of UCC § 2-201(3)(b) rendering contract of sale enforceable notwithstanding statute of frauds, to extent it is admitted in pleading, testimony, or otherwise in court, 88 ALR3d 416. Liability for interference with invalid or unenforceable contracts, 96 ALR3d 1294. Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds, 13 ALR4th 1153.