The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.
(Orig. Code 1863, § 2689; Code 1868, § 2685; Code 1873, § 2727; Code 1882, § 2727; Civil Code 1895, § 3645; Civil Code 1910, § 4230; Code 1933, § 20-108.)
Cross references.- Formation of contracts under Uniform Commercial Code, § 11-2-204.
Offer and acceptance under Uniform Commercial Code, §§ 11-2-206,11-2-207.
Law reviews.- For article discussing interpretation in Georgia of insurance policies containing evidentiary conditions, see 12 Ga. L. Rev. 783 (1978). 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.) For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010).
JUDICIAL DECISIONSANALYSIS
General Consideration
One seeking enforcement bears burden of proof as to essentials of contract.
- Burden to show that there had been contract between itself and defendants as basis of indebtedness is upon plaintiff, and to carry this burden, it is necessary for plaintiff to show, by preponderance of evidence, every necessary essential of a valid contract, which includes acceptance of policies of insurance by defendants after defendants had unconditionally assented to all terms of the contracts. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
No burden of disproving any essentials of valid contracts rests on defendant. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
When no identification of subject matter, nor agreement on price, there is no valid contract. North Ga. Lumber Co. v. Lawson, 40 Ga. App. 680, 150 S.E. 865 (1929).
When contract void for uncertainty, receipt, and retention thereunder renders defect immaterial. Jones v. Ely, 95 Ga. App. 4, 96 S.E.2d 536 (1957).
One able to read executing contract without reading contract is bound though ignorant of contents.
- One able to read, who executed written contract without reading the contract, cannot avoid liability thereon because one signed without knowing contents of contract, when one's so doing was not induced by any action or representation amounting to fraud on part of person with whom one was dealing. Georgia Medicine Co. v. Hyman & Co., 117 Ga. 851, 45 S.E. 238 (1903); Harrison & Garrett v. Wilson Lumber Co., 119 Ga. 6, 45 S.E. 730 (1903); Branan v. Warfield & Lee, 3 Ga. App. 586, 60 S.E. 325 (1908).
Business owner's argument that the owner did not assent to the terms of a contract for workers' compensation insurance as required by O.C.G.A. § 13-3-2 because the owner could not read well enough failed; the owner had a tenth-grade education and had experience with contracting and insurance policies, the owner's spouse was available to read the contents to the owner, and the owner did not present any evidence to show that the owner was induced to sign the agreement by any action or representation amounting to fraud. Brewer v. Royal Ins. Co. of Am., 283 Ga. App. 312, 641 S.E.2d 291 (2007).
Vagueness.
- Grant of partial summary judgment to the defendant in a breach of contract action was affirmed because the facts in the record did not show with reasonable certainty what the parties intended to do in the agreement; thus, the agreement on all material terms was not made and the defendant was not a party to the non-disclosure agreement and could not be bound by the agreement's terms. Souza v. Berberian, 342 Ga. App. 165, 802 S.E.2d 401 (2017).
Paper in form of note ineffective to create obligation when not delivered for such purpose.
- Paper in form of note was not effective as creating obligation of insured to defendant insurer or to its general agent when paper was never delivered for purpose of giving paper effect as note or other written obligation to pay money. Progressive Life Ins. Co. v. Reeves, 89 Ga. App. 900, 81 S.E.2d 519 (1954).
Letter confirming dates discussed in connection with proposed use of auditorium not a contract.
- Municipal auditorium manager has no authority to contract by parol and any contract executed by manager on behalf of city must be in writing. Where letter shows nothing more than confirmation of dates discussed in connection with proposed use of auditorium for antique show, at most, it is a letter showing intention of parties to contract and is not confirmation of a contract. Russell v. City of Atlanta, 103 Ga. App. 365, 119 S.E.2d 143 (1961).
Child not 10 years old, incapable of making gift of land; attempt to make, not subject of affirmance at majority. Burt v. Gooch, 37 Ga. App. 301, 139 S.E. 912 (1927).
No valid contract if incomplete agreement on amount of annual payment.
- If a contract is fully executed by a city and the only remaining obligations are payments owed to the city by the other party to the contract, but there is no agreement as to the annual sum to be paid beyond a certain year, no contract exists; the fact that the other party expects to pay some amount to be agreed upon, and does pay a certain amount annually for several years, does not show an agreement by that party to pay, or by the city to accept, that amount. City of Decatur v. Georgia Presbyterian Homes, Inc., 251 Ga. 290, 304 S.E.2d 908 (1983).
Settlement agreement must satisfy general contract rules for formation and enforcement.- Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. First, there must be a meeting of the minds between the parties concerning all of the essential terms of the agreement. Blum v. Morgan Guar. Trust Co., 709 F.2d 1463 (11th Cir. 1983).
Settlement agreement not enforceable.
- Although there was clear authority for an attorney to enter into a settlement agreement, no enforceable agreement arose out of a conference between the attorneys in a divorce action since the husband had not agreed to all the items under discussion. Bridges v. Bridges, 256 Ga. 348, 349 S.E.2d 172 (1986).
No binding settlement agreement formed.
- Grant of the defendant's motion to enforce a settlement agreement was error because there was no unequivocal acceptance of the settlement offer that the plaintiff made to the defendant's insurer; thus, no binding settlement agreement was formed as the offer specified a particular release that was necessary for effectuating settlement, and there was no acceptance if the responding party did not accept that release. Yim v. Carr, 349 Ga. App. 892, 827 S.E.2d 685 (2019), cert. denied, No. S19C1220, 2019 Ga. LEXIS 853 (Ga. 2019).
Contract in futuro ineffective.- Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. Southern Bell Tel. & Tel. Co. v. John Hancock Mut. Life Ins. Co., 579 F. Supp. 1065 (N.D. Ga. 1982).
Oral agreement unenforceable for vagueness.
- Oral agreement between renovator and partner was too vague to enforce where parties did not discuss the time each renovation should take, the length of time the property would be held until the property was resold, how the houses were selected, or how the renovator would be compensated if the partner lost money on a house. Razavi v. Shackelford, 260 Ga. App. 603, 580 S.E.2d 253 (2003).
Agreement not shown.
- Arbitration agreement was unenforceable as the agreement was not dated, nor did the provider sign the agreement, and the decedent's mother revoked the mother's assent to the agreement so there was nothing for the provider to assent to and thus no meeting of the minds. Hunter v. Lowndes County Health Services, LLC, 355 Ga. App. 367, 844 S.E.2d 261 (2020).
Cited in Johnson v. Latimer, 71 Ga. 470 (1883); Jones v. Gilbert, 93 Ga. 604, 20 S.E. 48 (1894); McDonald v. Pearre Bros. & Co., 5 Ga. App. 130, 62 S.E. 830 (1908); Hines v. Cureton-Cole Co., 9 Ga. App. 778, 72 S.E. 191 (1911); Chickamauga Mfg. Co. v. Augusta Grocery Co., 23 Ga. App. 163, 98 S.E. 114 (1919); Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585, 106 S.E. 914 (1921); Manget v. Carlton, 34 Ga. App. 526, 130 S.E. 604 (1925); Davis v. Farmers & Traders Bank, 36 Ga. App. 415, 436 S.E. 816 (1927); Federal Farm Mtg. Corp. v. Dixon, 185 Ga. 466, 195 S.E. 414 (1938); Trippe v. Crescent Farms, Inc., 58 Ga. App. 1, 197 S.E. 330 (1938); Pita v. Whitney, 190 Ga. 810, 10 S.E.2d 851 (1940); Milner Hotels v. Black, 196 Ga. 686, 27 S.E.2d 402 (1943); Denton v. Etheridge, 73 Ga. App. 221, 36 S.E.2d 365 (1945); Gettier-Montanye, Inc. v. Davidson Granite Co., 75 Ga. App. 377, 43 S.E.2d 716 (1947); National Life & Accident Ins. Co. v. Hamby, 81 Ga. App. 463, 59 S.E.2d 278 (1950); Lawson v. O'Kelley, 81 Ga. App. 883, 60 S.E.2d 380 (1950); Flatauer v. Goodman, 84 Ga. App. 881, 67 S.E.2d 794 (1951); Almand v. Northern Assurance Co., 92 Ga. App. 480, 88 S.E.2d 717 (1955); Bregman v. Rosenthal, 212 Ga. 95, 90 S.E.2d 561 (1955); Barnes v. Didschuneit, 94 Ga. App. 661, 96 S.E.2d 216 (1956); Crown Carpet Mills, Inc. v. C.E. Goodroe Co., 108 Ga. App. 327, 132 S.E.2d 824 (1963); Weikert v. Logue, 121 Ga. App. 171, 173 S.E.2d 268 (1970); Dowis v. Lindgren, 132 Ga. App. 793, 209 S.E.2d 233 (1974); Georgia-Pacific Corp. v. Corbin, 137 Ga. App. 37, 222 S.E.2d 862 (1975); Royal Mfg. Co. v. Denard & Moore Constr. Co., 137 Ga. App. 650, 224 S.E.2d 770 (1976); Peacock v. Gibson, 237 Ga. 600, 229 S.E.2d 347 (1976); Mayer v. Turner, 142 Ga. App. 63, 234 S.E.2d 853 (1977); Siegel v. Codner, 153 Ga. App. 438, 265 S.E.2d 287 (1980); Jones v. Barnes, 170 Ga. App. 762, 318 S.E.2d 164 (1984); Farmer v. Argenta, 174 Ga. App. 682, 331 S.E.2d 60 (1985); Beckworth v. Beckworth, 255 Ga. 241, 336 S.E.2d 782 (1985); Moore v. Farmers Bank, 184 Ga. App. 86, 360 S.E.2d 640 (1987); Poulos v. Home Fed. Sav. & Loan Ass'n, 192 Ga. App. 501, 385 S.E.2d 135 (1989); Wallace v. Triad Sys. Fin. Corp., 212 Ga. App. 665, 442 S.E.2d 476 (1994); Moore v. Emery (In re Am. Steel Prod., Inc.), 203 Bankr. 504 (Bankr. S.D. Ga. 1996); Morrison v. Trust Co. Bank, 229 Ga. App. 145, 493 S.E.2d 566 (1997); Meadows Motor, Inc. v. United Servs. Auto. Ass'n, 230 Ga. App. 387, 496 S.E.2d 355 (1998); Legg v. Stovall Tire & Marine, Inc., 245 Ga. App. 594, 538 S.E.2d 489 (2000); McKenna v. Capital Res. Partners, IV, L.P., 286 Ga. App. 828, 650 S.E.2d 580 (2007); Cushing v. Cohen, 323 Ga. App. 497, 746 S.E.2d 898 (2013).
Mutuality of Assent
Mutuality of intention or assent is of essence of contract. Daly v. Harris, 33 Ga. 38 (1864).
Meeting of minds of parties is necessary. Taylor Lumber Co. v. Clark Lumber Co., 33 Ga. App. 815, 127 S.E. 905 (1925).
Essence of mutual assent is the meeting of the minds of the parties, and both parties must concur in all terms of the proposed contract, agreeing to the same thing in the same sense. Complete Concepts, Ltd. v. General Handbag Corp., 880 F.2d 382 (11th Cir. 1989).
Contract is not complete and enforceable until there is a meeting of the minds as to all essential terms. Clark v. Schwartz, 210 Ga. App. 678, 436 S.E.2d 759 (1993).
In a case in which a steel company signed a purchase order from a general contractor after it had rejected the terms of the purchase order and had submitted a counter-offer to the general contractor, summary judgment was correctly entered in favor of the general contractor where there was no material fact in dispute; no reasonable jury could find that the general contractor and the steel company agreed to terms of a steel supply contract for the construction project. The requirement for a meeting of the minds necessary under O.C.G.A. § 13-3-2 had not been met, and there was no agreement between the parties under O.C.G.A. § 11-2-204. South Cent. Steel, Inc. v. McKnight Constr. Co., F.3d (11th Cir. Jan. 25, 2008)(Unpublished).
While plaintiff lender stated the lender was willing to negotiate some type of forbearance agreement (FA) on execution, crucial terms (duration and conditions of payments) were still missing, and since the next day the defendant borrower was informed the lender would just confirm the arbitration award and terminate negotiations, there was never a meeting of the minds on the specific terms of a FA and, thus, under O.C.G.A. §§ 13-3-1 and13-3-2, there was no enforceable contract. GE Commer. Distrib. Fin. Corp. v. Ball, F.3d (11th Cir. July 13, 2012)(Unpublished).
Agreement as to essential terms.
- Oral settlement agreement, which was read into the court's record and which allowed defendants to set a certain property value based on two appraisals, was an enforceable contract under O.C.G.A. § 13-3-2 because the parties had agreed to the essential terms of the settlement, as evidenced by the fact that the judge had given the parties the opportunity to add other terms, but plaintiff merely reiterated that the appraisers just had to be certified and based in the local area. Thus, a subsequent written settlement agreement requiring that the appraisals, which had already been conducted, be done by general appraisers instead of residential appraisers, was not enforceable. Clough Mktg. Servs. v. Main Line Corp., F. Supp. 2d (N.D. Ga. Nov. 2, 2007), aff'd, 2008 U.S. App. LEXIS 12352 (11th Cir. Ga. 2008).
Trial court properly found that no contract had been formed as a matter of law because the parties failed to assent to the contract's essential terms. The parties never agreed on a lender's rate of return on the investment and on the structure of the transaction; these terms were inherently material, as the terms would define the consideration for the investment. Gardner v. Marcum, 292 Ga. App. 369, 665 S.E.2d 336 (2008), cert. denied, 2008 Ga. LEXIS 938 (Ga. 2008).
Parties' verbal expressions and conduct demonstrated an intent to be bound by an oral agreement for the sale of two sports teams and the operating rights to a sports arena because the oral agreement concerned all material terms of the sale, and agreement was reached prior to the seller's announcement that the seller had completed a sale to another entity. Turner Broad. Sys. v. McDavid, 303 Ga. App. 593, 693 S.E.2d 873 (2010).
No contract arises if parties have not agreed to same thing.
- If, from mistake or otherwise, both parties have not agreed to same thing, no contract has been made, and there is nothing to enforce. Singer v. Grand Rapids Match Co., 117 Ga. 86, 43 S.E. 755 (1903).
If there was no evidence that the parties to an option contract had agreed to be bound by exactly the same terms and no consideration had been given for the alleged offer, there was no complete and legally sufficient contract. Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga. App. 432, 511 S.E.2d 538 (1999).
Parties must assent to all essential terms of the contract, and since the timber buyer and the timber seller did not agree on the essential element of the length of the "cutting term," no contract was formed between the parties and the timber seller was required to return the timber buyer's option purchase money. Peace v. Dominy Holdings, Inc., 51 Ga. App. 654, 554 S.E.2d 314 (2001).
Record supported the trial court's finding that there was no meeting of the minds in the execution of a note, where the maker struck three significant provisions in the proposed note before the maker signed the note, but there was no indication that the payee accepted the changes; there was evidence that the parties did not agree that settlement of a lawsuit would provide consideration for the note and there was no written settlement agreement to memorialize the terms of the parties' agreement. Drake v. Wallace, 259 Ga. App. 111, 576 S.E.2d 87 (2003).
Debtors' breach of contract claim against a bank failed since it was clear that the trial period plan agreement, upon which those claims were based, contained none of the essential contract terms, including an agreement as to the essential terms. Salvador v. Bank of Am., N.A. (In re Salvador), 456 Bankr. 610 (Bankr. M.D. Ga. 2011).
Meeting of minds as to subject matter necessary for definiteness required to maintain action.
- For contract to be sufficiently definite so that action may be maintained thereon, it is necessary to show that minds of parties are in agreement as to subject matter upon which contract purports to operate. Jones v. Ely, 95 Ga. App. 4, 96 S.E.2d 536 (1957).
To be enforceable minds of contracting parties must be in such agreement on subject matter upon which contract purports to operate that either party might support action thereon. Ethridge v. Quality Hatchery, Inc., 101 Ga. App. 76, 112 S.E.2d 778 (1960).
Meeting of minds shown.
- Because nothing remained to negotiate in the terms of the forms necessary to effectuate a settlement, the trial court erred in concluding there was no meeting of the minds as to every essential term of the agreement, due to an alleged lack of agreement as to the forms required. Capitol Materials, Inc. v. Kellogg & Kimsey, Inc., 242 Ga. App. 584, 530 S.E.2d 488 (2000).
Unresolved on summary judgment.- Claims of breach of implied contract, quantum meruit, and unjust enrichment survived summary judgment because there were issues of fact as to whether the defendant asked the plaintiff to help place its synthetic oil as a factory fill in certain manufacturer's cars, and as to whether the plaintiff was adequately paid for that service. Morrison v. Exxonmobil Corp. Constr. Millwright, Inc., F. Supp. 2d (M.D. Ga. Sept. 28, 2005).
Summary judgment for a corporation on an investor's claims for money had and received and for conversion was error under circumstances in which the issue was whether the investor entered into a binding contract for the payment, and, although the investor had signed a subscription agreement and sent the agreement to the corporation, the investor claimed that the investor revoked that offer before the offer was accepted by the corporation; the date on which the corporation accepted the offer was a genuine issue of material fact, requiring proof. An exhibit which purported to show the handwritten date of acceptance was unauthenticated and was not competent evidence. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 681 S.E.2d 717 (2009).
What constitutes assent of parties to terms of contract.
- Mutual assent is assent to same thing in same sense, under common understanding of stipulations agreed to. Martin v. Thrower, 3 Ga. App. 784, 60 S.E. 825 (1908).
While contract can be made by correspondence through mails or by telegrams, offer of seller must be accepted by purchaser unequivocally, unconditionally, and without variance of any sort, must be a mutual assent of parties, and both parties must assent to same thing in same sense. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
In order to make any sort of a contract, the offer of the seller must be accepted by the purchaser, unequivocally, unconditionally, and without variance of any sort. An absolute acceptance of a proposal, coupled with a condition, will not be a complete contract, because there does not exist the requisite mutual assent to the same thing in the same sense. Both parties must assent to the same thing in order to make a binding contract between the parties. Harry Norman & Assocs. v. Bryan, 158 Ga. App. 751, 282 S.E.2d 208 (1981).
Assent to terms of contract may be given other than by signatures. Rogin v. Dimensions S. Realty Corp., 153 Ga. App. 75, 264 S.E.2d 555 (1980).
Assent to oral agreement shown by witnesses testimony.
- Trial court erred by granting partial summary judgment to an executrix on a counterclaim brought by two stepchildren of the decedent asserting breach of an oral contract to make a will as the alleged contract predated the written will mandate of O.C.G.A. § 53-4-30 and testimony was provided that the oral agreement was witnessed and that the decedent assented to the agreement. Therefore, the executrix was not entitled to summary judgment on the breach of contract claim. Rushin v. Ussery, 298 Ga. App. 830, 681 S.E.2d 263 (2009).
Mutuality of assent may be given by agents or letters as well as personally.
- Mutuality of assent to certain and definite proposition required to consummate contract may be given not only personally where parties are present, but by means of agents or letters where parties are at a distance from each other. Jernigan, Lawrence & Co. v. Wimberly, 1 Ga. 220 (1846); Levy v. Cohen, 4 Ga. 1 (1848).
Contract resting in parol must be assented to by both parties in same sense. Martin v. Thrower, 3 Ga. App. 784, 60 S.E. 825 (1908).
Contract of insurance is not complete until both parties have agreed to all contract's terms, and burden of proving that policies of insurance were not accepted is on plaintiff. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
Construction of words in insurance contract.
- Term "landslide" as used in the coverage provisions of an insurance policy did not apply only to natural occurring events, when no such restriction was contained within the policy language and since, inter alia, other clauses listing perils insured against placed specific restrictions on broad terms; to the extent there was any ambiguity in the use of the term landslide, it was interpreted against the insurance company. Auto-Owners Ins. Co. v. Parks, 278 Ga. App. 444, 629 S.E.2d 118 (2006).
Price.
- As price is an essential element of a valid contract, an alleged contract on which there is no firm agreement as to the price is unenforceable. Bellsouth Adv. & Publishing Corp. v. McCollum, 209 Ga. App. 441, 433 S.E.2d 437 (1993).
Insertion of provision after one party has signed.
- When provision was written into contract after it was signed by one party and was not subsequently resubmitted to that party, contract was incomplete, as it was never agreed to by both parties, and could be rescinded since there was no meeting of minds of parties on all terms. Vlass v. Walker, 86 Ga. App. 742, 72 S.E.2d 464 (1952).
Blank note signed and delivered without understanding as to completion.
- Blank note signed and delivered by insured to defendant insurer's general agent without any understanding or agreement between them as to amount note was to be filled in for, or as to due date to be inserted therein, was not binding and enforceable obligation of insured, and could not be asserted by beneficiary as having constituted payment of premium on policy of insurance in question. Progressive Life Ins. Co. v. Reeves, 89 Ga. App. 900, 81 S.E.2d 519 (1954).
To bind one to unsigned written contract, prima facie assent to terms must be shown.
- When one party seeks to bind another by unsigned written contract, it is incumbent upon the party to show prima facie assent of the other to its terms, before the party can introduce it in evidence against him. Kidd v. Huff, 105 Ga. 209, 31 S.E. 430 (1898).
Assent implied on facts.
- When it appeared that defendants, sued as sureties, had requested of creditor an indulgence to principal, such as certain and definite extension of time in which sureties might pay debt, request being embodied in contract tendered by sureties for creditor's acceptance, upon creditor's acceptance and retention of papers, creditor assented to terms thereof; and even though creditor did not promise indulgence in express words, such a promise or undertaking on creditor's part was implied by law. Loewenherz v. Weil, 33 Ga. App. 760, 127 S.E. 883 (1925).
Contract existence was question of fact for a jury.
- Summary judgment was improperly granted to an insurance broker in a contract dispute because there was conflicting testimony regarding the course of dealings between the party relating to whether or not a contract existed under O.C.G.A. §§ 13-3-1 and13-3-2; the question of fact should have been decided by a jury instead. Terry Hunt Constr., Inc. v. AON Risk Servs., 272 Ga. App. 547, 613 S.E.2d 165 (2005).
Summary judgment was inappropriate in a breach of fiduciary duty action which centered around a verbal settlement agreement as material fact issues remained as to whether: (1) a company's offer to buy the minority shareholders' stock required a written purchase agreement; (2) the parties agreed to all material terms; and (3) a note signed by one of the minority shareholders had been cancelled. McKenna v. Capital Res. Partners, IV, L.P., 286 Ga. App. 828, 650 S.E.2d 580 (2007), cert. denied, 2007 Ga. LEXIS 752, 763 (Ga. 2007).
Trial court erred in granting the defendant's motion to enforce a settlement agreement because an issue of fact existed as to whether the parties agreed during the settlement conversation to a limited release or a general release, which would preclude any potential recovery against the plaintiff's uninsured motorist carrier as the affidavit of the plaintiff's counsel that they agreed to a limited release constituted evidence sufficient to create a jury issue. Cone v. Dickenson, 335 Ga. App. 835, 783 S.E.2d 358 (2016).
General release provision implied from failure to object to oral settlement.- An oral settlement agreement as to damages for injuries suffered in an accident was enforceable with a general release provision where the plaintiff's attorney did not discover the need for inclusion of language to preserve the plaintiff's right to claim under insurance benefits pursuant to the policy insuring the driver of the car in which plaintiff was a passenger until after they orally agreed to settle the case; counsel's assent to inclusion of a general release could be implied from counsel's failure to object when counsel agreed to settle the case. Wong v. Bailey, 752 F.2d 619 (11th Cir. 1985).
Offer and Acceptance
If there is a proposition but the proposition is not accepted, no binding contract results. Sheffield v. Whitfield, 6 Ga. App. 762, 65 S.E. 807 (1909).
Acceptance before withdrawal or termination of continuing offer results in contract. Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117, 80 S.E. 559 (1913).
Acceptance means assent. Loewenherz v. Weil, 33 Ga. App. 760, 127 S.E. 883 (1925).
Acceptance must be unconditional and identical with terms of offer.
- Answer to offer will not amount to acceptance, so as to result in binding contract, unless it be unconditional and identical with terms of offer. Winder Mfg. Co. v. Pendleton Co., 27 Ga. App. 476, 108 S.E. 823 (1921).
To constitute a contract, offer must be accepted unequivocally and without variance of any sort. Gray v. Lynn, 139 Ga. 294, 77 S.E. 156 (1913); Dillin-Morris Co. v. Gillespie, 15 Ga. App. 210, 82 S.E. 812 (1914); Anderson, Clayton & Co. v. Mangham, 32 Ga. App. 152, 123 S.E. 159 (1924).
If there is variance between offer and answer, there is no acceptance, but a counter-offer, which, to result in contract, must be accepted by original proposer. Winder Mfg. Co. v. Pendleton Co., 27 Ga. App. 476, 108 S.E. 823 (1921).
Since the defendant's letter showed in clear and unmistakable terms that the defendant was proposing to sell the defendant's shares to the plaintiff at a certain price, neither that letter nor another, subsequent one triggered provisions in the shareholder's agreement which only came into play through the selling shareholder's transmittal of copies of a written offer containing certain required information, and the plaintiff could therefore not force the defendant to part with the defendant's shares at a different price than that set forth in the defendant's offer because plaintiff's responding letter was a counteroffer, rather than an acceptance. Destag of N. Am., Inc. v. LAN Int'l, Inc., 236 Ga. App. 476, 512 S.E.2d 365 (1999).
Offer may contemplate acceptance by act.
- Offer may contemplate acceptance by doing of an act; and if act be performed while offer is in life, a binding contract is created, and person making offer must abide by offer's terms. Anderson, Clayton & Co. v. Mangham, 32 Ga. App. 152, 123 S.E. 159 (1924).
When offer requires express acceptance, private uncommunicated assent insufficient.
- While an offer may contemplate acceptance by doing of an act, when an express acceptance is required by the offer in order to establish a contract, acceptance must be communicated to offerer, and a mere private uncommunicated assent would not effect an agreement. Federal Farm Mtg. Corp. v. Dixon, 185 Ga. 466, 195 S.E. 414 (1938); National Fire Ins. Co. v. Farris, 63 Ga. App. 479, 11 S.E.2d 427 (1940).
Offer, once rejected, loses legal force and cannot thereafter be accepted unless renewed.
- Offer, when once rejected, loses its legal force and cannot be accepted thereafter so as to create binding agreement unless the offer is renewed after rejection by original offerer. No revocation of offer is, therefore, necessary to prevent its subsequent acceptance after it has once been rejected. Winder Mfg. Co. v. Pendleton Co., 27 Ga. App. 476, 108 S.E. 823 (1921).
Continuing offer.
- When under the clear and unambiguous terms of letters to a shipper, a carrier offered to ship any goods presented by the shipper at certain prices and on certain terms, this was a continuing offer and became a contract with regard to each separate shipment only when the shipper accepted the offer and engaged the carrier's services. Esquire Carpet Mills, Inc. v. Kennesaw Transp., Inc., 186 Ga. App. 367, 367 S.E.2d 569 (1988).
Continuing offer or option becomes contract itself if consideration given.
- If two parties contract upon consideration that option given or offer made by one to other shall remain open and subject to acceptance of latter until stated time, this makes a binding contract to that effect. But mere proposition or offer, based on no consideration, though continuing in character, or though stated to be subject to acceptance until given time, may be withdrawn before actual acceptance or assent thereto by other party. Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117, 80 S.E. 559 (1913); Amwest Surety Ins. Co. v. RA-LIN & Assocs., 216 Ga. App. 526, 455 S.E.2d 106 (1995).
Owner may withdraw owner's property from auction any time before hammer falls. Jackson v. L.S. Brown Co., 86 Ga. App. 310, 71 S.E.2d 521 (1952).
Retention of contract without signing contract.
- After an attorney drafted a contract personally and delivered the contract, signed by the attorney and a brother, to their mother, who kept the contract with her personal papers, the fact that she did not sign the contract did not negate her assent to the contract's terms. Warthen v. Moore, 258 Ga. 198, 366 S.E.2d 666 (1988).
Renewal policy delivered to insured without insured's request requires acceptance before contract arises.
- Rule as to right of insured to reject renewal policy is that delivery of policy by insurer to insured, upon expiration of policy, without request by insured, is an offer or proposal which must be accepted by insured before contract of insurance is effected. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
Delay in rejecting offered policy renewal not acceptance as will continue policy in force.
- Offer by letter to renew policy does not effect contract unless accepted by insured, and mere delay in rejecting renewal policy does not amount to acceptance which will continue policy in force. Associated Muts., Inc. v. Pope Lumber Co., 200 Ga. 487, 37 S.E.2d 393 (1946).
Application for policy of insurance unless accepted within reasonable time, may be considered as rejected. Home Ins. Co. v. Swann, 34 Ga. App. 19, 128 S.E. 70 (1924), later appeal, 35 Ga. App. 358, 133 S.E. 280 (1926), later appeal, 36 Ga. App. 601, 137 S.E. 304 (1927).
When insurance company failed to respond to application for six months, rejection conclusively presumed.
- While period constituting reasonable time for acceptance of insurance application may, as a general rule, be a matter for determination by jury, where insurance company appears to have remained silent for approximately six months after receipt of application, presumption that the application was rejected becomes conclusive. Home Ins. Co. v. Swann, 34 Ga. App. 19, 128 S.E. 70 (1924), later appeal, 35 Ga. App. 358, 133 S.E. 280 (1926), later appeal, 36 Ga. App. 601, 137 S.E. 304 (1927).
Proof of acceptance in action for broker's commission.
- While in every action for broker's commissions, proof of acceptance of an offer might not be required, where the action is predicated upon the broker's having procured a buyer ready, willing, and able to buy on terms stipulated by the owner, the proof of an offer by the proposed purchaser to buy on terms not stipulated by the owner will not entitle the plaintiff broker to the broker's commissions. Harry Norman & Assocs. v. Bryan, 158 Ga. App. 751, 282 S.E.2d 208 (1981).
Listing of contractor as "potential minority subcontractor" not acceptance of subcontractor's bid.
- Company A's listing of Company B as a "potential minority subcontractor" in Company A's bid on the prime contract did not constitute acceptance by Company A of Company B's bid on the subcontracting job. Southeast Grading, Inc. v. City of Atlanta, 172 Ga. App. 798, 324 S.E.2d 776 (1984).
Purported settlement agreement concerning interests in real estate was unenforceable because no agreement to settle was formed as required by O.C.G.A. § 13-3-2. Newcomer v. Newcomer, 278 Ga. 776, 606 S.E.2d 238 (2004).
Settlement offer with no time limit could be accepted in a reasonable time.
- Following a car crash in which the deceased insured was at fault, leaving five people injured, the insurer was entitled to summary judgment on the insured's estate's claim seeking an excess judgment based on the insurer's failure to settle with two plaintiffs for the policy limits. The plaintiffs' settlement offer did not contain a time limitation, or at best it was ambiguous, giving the insurer a reasonable time to respond, yet plaintiffs' counsel revoked the offer 41 days later. First Acceptance Ins. Co. of Ga. v. Hughes, 305 Ga. 489, 826 S.E.2d 71 (2019).
RESEARCH REFERENCES
C.J.S.
- 17 C.J.S., Contracts, § 30.
ALR.
- Acceptance of offer with condition which law would imply, 1 A.L.R. 1508.
Acknowledging receipt of order for goods as an acceptance completing the contract, 10 A.L.R. 683.
Silence when offer is made or failure to reject it as an acceptance which will consummate a bilateral contract, 77 A.L.R. 1141.
Revocation of offer of reward, 107 A.L.R. 1085.
What amounts to acceptance by owner of work done under contract for construction or repair of building which will support a recovery on quantum meruit, 107 A.L.R. 1411.
Implied obligation of one to pay for services or goods which another at his request has rendered or furnished to a third person, 125 A.L.R. 1428.
Circumstances supporting inference of original offerer's acceptance of counteroffer or assent to conditions attached by offeree to his acceptance, 135 A.L.R. 821.
Acceptance of offer of contract predicated upon reply which contemplates third person as party to the contract, 170 A.L.R. 996.
Difference between offer and acceptance as regards place of payment or of delivery as variance preventing consummation of contract, 3 A.L.R.2d 256.
Rights and remedies arising out of delay in passing upon application for insurance, 32 A.L.R.2d 487.
Ratification of contract voidable for duress, 77 A.L.R.2d 426.
Validity, construction, and effect of contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732.
Nature, construction, and effect of "lay away" or "will call" plan or system, 10 A.L.R.3d 456.
Variance between offer and acceptance in regard to title as affecting consummation of contract for sale of real property, 16 A.L.R.3d 1424.
Validity and construction of "no damage" clause with respect to delay in building or construction contract, 74 A.L.R.3d 187.
Sufficiency of notice of modification in terms of compensation of at-will employee who continues performance to bind employee, 69 A.L.R.4th 1145.