In a severable contract or one admitting of apportionment, a part performance may be a defense pro tanto.
(Orig. Code 1863, § 2813; Code 1868, § 2821; Code 1873, § 2872; Code 1882, § 2872; Civil Code 1895, § 3726; Civil Code 1910, § 4320; Code 1933, § 20-1103.)
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 A.L.R. 693.
Acceptance of principal sum as affecting right to interest, 100 A.L.R. 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 A.L.R. 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 A.L.R.3d 788.
Limitation to quantum meruit recovery, where attorney employed under contingent fee contract is discharged without cause, 92 A.L.R.3d 690.
Limitation to quantum meruit recovery where attorney employed under contingent fee contract is discharged without cause, 56 A.L.R.5th 1.
ARTICLE 2 STATUTE OF FRAUDS
Law reviews.
- For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019). 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); Cheeley Invs., L.P. v. Zambetti, 332 Ga. App. 115, 770 S.E.2d 350 (2015).
RESEARCH REFERENCESTerms 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 A.L.R. 1193; 33 A.L.R. 739; 73 A.L.R. 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 A.L.R. 10; 29 A.L.R. 1095; 80 A.L.R. 539; 118 A.L.R. 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 A.L.R. 1033.
Agreements in relation to exchange or remittance as within statute of frauds, 19 A.L.R. 1140.
Admission by pleading of a parol contract as preventing pleader from taking advantage of the statute of frauds, 22 A.L.R. 723.
Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within the statute of frauds, 22 A.L.R. 735.
Agreement to release, discharge, or assign real estate mortgage as within statute of frauds, 32 A.L.R. 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 A.L.R. 223.
Rights of parties under oral agreement to buy land or bid it in at judicial sale for another, 42 A.L.R. 10; 135 A.L.R. 232; 27 A.L.R.2d 1285.
Necessity and sufficiency of consideration for modification of real estate broker's contract, 42 A.L.R. 987.
Promise by other than the principal to indemnify a surety as one to answer for the debt, default, or miscarriage of another, 68 A.L.R. 347.
May part performance of oral contract to convey be predicated upon possession or improvement by one spouse of real property of other, 74 A.L.R. 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 A.L.R. 1025.
Undelivered deed or escrow, pursuant to oral contract, as satisfying statute of frauds, 100 A.L.R. 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 A.L.R. 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 A.L.R. 1105.
Acceptance which will satisfy statute of frauds where purchaser of goods is in possession at time of sale, 111 A.L.R. 1312.
Parol lease for term of a year to commence in future as within statute of frauds, 111 A.L.R. 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 A.L.R. 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 A.L.R. 1468.
Signing of contract or memorandum by agent of undisclosed principal as satisfying statute of frauds, 138 A.L.R. 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 A.L.R. 814.
Brokerage or agency contract concerning real property as within statute of frauds, 151 A.L.R. 648.
Check or note as memorandum satisfying statute of frauds, 153 A.L.R. 1112.
Manner of pleading statute of frauds as defense, 158 A.L.R. 89.
Oral agreement restricting use of real property as within statute of frauds, 5 A.L.R.2d 1316.
Check as payment within contemplation of statute of frauds, 8 A.L.R.2d 251.
Undelivered lease or contract (other than for sale of land), or undelivered memorandum thereof, as satisfying statute of frauds, 12 A.L.R.2d 508.
Broker's right to commission where customer repudiates or fails to complete contract or promise which is oral or not specifically enforceable, 12 A.L.R.2d 1410.
Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 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 A.L.R.2d 246.
Rights of parties under oral agreement to buy or bid in land for another, 27 A.L.R.2d 1285.
Oral acceptance of written offer by party sought to be charged as satisfying statute of frauds, 30 A.L.R.2d 972.
Validity and effect of promise not to make a will, 32 A.L.R.2d 370.
Real-estate broker's right to recover in quantum meruit for services although contract is not in writing as required by statute, 41 A.L.R.2d 905.
Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 A.L.R.2d 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 A.L.R.2d 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 A.L.R.3d 788.
Sufficiency, under statute of frauds, of description or designation of property in real-estate brokerage contract, 30 A.L.R.3d 935.
Promissory estoppel as basis for avoidance of statute of frauds, 56 A.L.R.3d 1037.
Exceptions to rule that oral gifts of land are unenforceable under statute of frauds, 83 A.L.R.3d 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 A.L.R.3d 416.
Liability for interference with invalid or unenforceable contracts, 96 A.L.R.3d 1294.
Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds, 13 A.L.R.4th 1153.