If performance of the terms of a contract becomes impossible as a result of an act of God, such impossibility shall excuse nonperformance, except where, by proper prudence, such impossibility might have been avoided by the promisor.
(Orig. Code 1863, § 2812; Code 1868, § 2820; Code 1873, § 2871; Code 1882, § 2871; Civil Code 1895, § 3725; Civil Code 1910, § 4319; Code 1933, § 20-1102.)
Cross references.- Duty of administrator or executor to fulfill, when possible, decedent's contractual obligations, § 53-7-9.
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
Act of God defined.
- Act of God means any accident produced by physical causes which are irresistible; such as lightning, storms, perils of sea, earthquakes, inundations, sudden death, or illness. Act of God excludes all idea of human agency. Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983 (1901).
If act of God makes performance impossible, it constitutes a defense equivalent to performance. 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).
Impossibility does not amount to performance 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).
Impossibility may be defense, but not basis for recovery.- Impossibility of performance may be defense to action but it does not stand for performance so as to enable such party to sue and recover as if the party had performed. 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).
Wars not acts of God.
- World War II can in no sense be said to be an act of God. War is not an unforeseen casualty or misfortune; on the contrary, war is something which may be anticipated, as unpleasant as it is to do so, and against which parties can protect themselves by contract. Felder v. Oldham, 199 Ga. 820, 35 S.E.2d 497 (1945).
Impossibility not due to act of God nor other party.
- If 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).
Defendants in a contract dispute could not defend their failure to continue to honor merchant referral requirements in the parties' contract on impossibility grounds because defendants failed to identify evidence showing that performance of their obligations was "impossible" as defined by O.C.G.A. § 13-4-21 or the doctrine of impossibility. In fact, defendants did continue with referrals for approximately a year after the merger at issue. Elavon, Inc. v. Wachovia Bank, NA, F. Supp. 2d (N.D. Ga. May 23, 2011).
Nonperformance attributable to natural, reasonably expected rains, not excused.
- Nonperformance of contract not excused because one of party is prevented from performing that party's obligations in premises by rains which are naturally and reasonably to be expected. In no sense could interference with work, attributable to rains which were neither unusual nor unprecedented, be an excuse for noncompliance with the contract. Tasker v. Baugh & Johnson, 124 Ga. 846, 53 S.E. 266 (1906). See also Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983 (1901).
Sickness of defendant is good defense to scire facias issued to forfeit defendant's bond alleged to be defaulted. McArdle v. McDaniel, 75 Ga. 270 (1885).
Liability for error in transmitting telegram during storm.
- Telegraph company may be excused for nontransmission of message due to storms, but if message be transmitted and alteration occurs, causing damage to sender, company is liable for damage. However, a sudden storm rendering it impossible for company to determine whether message, as received, was same as that sent may excuse company. Western Union Tel. Co. v. Cohen, 73 Ga. 522 (1884).
Injury not caused by act of God if negligence plays part.
- No injury can be said to be caused by act of God which can, under any fair view, be attributed to negligence of man. Georgia S. & F. Ry. v. Barfield, 1 Ga. App. 203, 58 S.E. 236 (1907).
Section inapplicable where purpose for which premises rented later becomes illegal.
- After tenant rented hotel that included saloon and later sale of liquor was prohibited by legislature, tenant was liable for full amount of rent, and the act of God provisions were inapplicable. Lawrence v. White, 131 Ga. 840, 63 S.E. 631, 19 L.R.A. (n.s.) 966, 15 Ann. Cas. 1097 (1909).
Cited in Griggs v. Swift, 82 Ga. 392, 9 S.E. 1062 (1889); Young v. Waldrip, 91 Ga. 765, 18 S.E. 23 (1893); Bank of Wrightsville v. Merchants & Farmers Bank, 119 Ga. 288, 46 S.E. 94 (1903); Cooley v. Moss, 123 Ga. 707, 51 S.E. 625 (1905); White v. Sailors, 17 Ga. App. 550, 87 S.E. 831 (1916); Campbell v. Rybert, 178 Ga. 28, 172 S.E. 52 (1933); Allstate Ins. Co. v. Moody, 128 Ga. App. 300, 196 S.E.2d 482 (1973); Valley Place, Ltd. v. T.I. Equity Fund, L.P., 246 Ga. App. 378, 541 S.E.2d 37 (2000).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17 Am. Jur. 2d, Contracts, § 404 et seq.
Act of God, 6 POF3d 319.
C.J.S.- 17A C.J.S., Contracts, §§ 459, 463.
ALR.
- Appointment of receiver as excuse for nonperformance of contract, 12 A.L.R. 1079; 33 A.L.R. 499.
Destruction or loss of specific property which is the subject or basis of a contract, after the inception of the contract, as excuse for nonperformance, 12 A.L.R. 1273; 74 A.L.R. 1289.
Destruction of or damage to building as affecting rights of parties to option, 23 A.L.R. 1225.
Demurrage as affected by impossibility of performing shipper's obligation, due to act of God or weather conditions, 26 A.L.R. 1431.
Death of obligor as affecting executory obligation in consideration of promise to marry obligor, 34 A.L.R. 86.
Demurrage as affected by insurrection or act of public authorities, 44 A.L.R. 829.
Death of contractor as terminating building contract, 44 A.L.R. 1345.
Construction and effect of provision excusing performance of contract in case of crop failure, 67 A.L.R. 1432.
Insolvency of insurer as affecting liability of one under duty by statute or contract to carry or maintain insurance for another's protection, 106 A.L.R. 248.
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, 137 A.L.R. 1199; 147 A.L.R. 1273; 148 A.L.R. 1382; 149 A.L.R. 1447; 150 A.L.R. 1413; 151 A.L.R. 1445; 151 A.L.R. 1447; 152 A.L.R. 1445; 152 A.L.R. 1447; 153 A.L.R. 1413; 153 A.L.R. 1417; 154 A.L.R. 1445; 155 A.L.R. 1445; 155 A.L.R. 1447; 156 A.L.R. 1445; 156 A.L.R. 1446; 157 A.L.R. 1445; 157 A.L.R. 1446; 158 A.L.R. 1445; 158 A.L.R. 1446.
Price ceiling, adopted as a war measure, as affecting pre-existing contracts, 147 A.L.R. 1286; 149 A.L.R. 1451; 151 A.L.R. 1450.
Modern status of the rules regarding impossibility of performance as defense in action for breach of contract, 84 A.L.R.2d 12.
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 A.L.R.3d 788.
Construction and operation of parking-space provision in shopping-center lease, 56 A.L.R.3d 596.
Enforceability of contract to make will in return for services, by one who continues performance after death of person originally undertaking to serve, 84 A.L.R.3d 930.
Inability to obtain license, permit, or charter required for tenant's business as defense to enforcement of lease, 89 A.L.R.3d 329.
Right of architect to compensation under contractual provision that fee is to be paid from construction loan funds, 92 A.L.R.3d 509.