(Laws 1764, Cobb's 1851 Digest, p. 725; Laws 1765, Cobb's 1851 Digest, p. 727; Code 1863, § 2717; Code 1868, § 2711; Code 1873, § 2753; Code 1882, § 2753; Civil Code 1895, § 3671; Civil Code 1910, § 4256; Ga. L. 1924, p. 126, § 57; Code 1933, § 20-505.)
Cross references.- Gambling generally, § 16-12-20 et seq.
Law reviews.- For note, "Recovery of Losses on Cotton Futures," see 1 Ga. L. Rev. No. 1, p. 43 (1927). For note discussing organized crime in Georgia with respect to the application of state gambling laws, and suggesting proposals for combatting organized crime, see 7 Ga. St. B.J. 124 (1970). For comment on Moore v. Atlantic Athletic Club, 79 Ga. App. 41, 52 S.E.2d 628 (1949), denying recovery to informer of money lost to slot machine, see 1 Mercer L. Rev. 314 (1950).
JUDICIAL DECISIONSANALYSIS
This statute is exception to doctrine that court will not aid parties in pari delicto. Quillian v. Johnson, 122 Ga. 49, 49 S.E. 801 (1905) (see O.C.G.A. § 13-8-3).
Policy of law-making power of this state has been to frown consistently on gambling transactions of whatever character. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
Gambling transactions contravene public policy of Georgia and constitute obligations unenforceable in Georgia courts. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
Gambling contract or one based upon a gaming consideration is void and unenforceable. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Gambler shall not be protected in the gambler's unlawful gains. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
Wagering contracts are against policy of the law and are unenforceable. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
Section inapplicable to money deposited in slot machines.
- Maintenance and operation of a slot machine, where persons playing the slot machine may, by chance, obtain money or articles of value worth more than money deposited in the machine, is a lottery or transaction in the nature of a lottery, and the law providing for recovery back of consideration paid under gaming contracts, is not applicable thereto. Thompson v. Ledbetter, 74 Ga. App. 427, 39 S.E.2d 720 (1946).
The law does not apply to a slot machine. What is generally known as a slot machine is a lottery and is not playing or betting at any game whatever, and this statute has reference to recovery of money or property paid or delivered upon account of losses by playing or betting at a game. Moore v. Atlanta Athletic Club, 79 Ga. App. 41, 52 S.E.2d 628 (1949) (see O.C.G.A. § 13-8-3).
Contracts known as options are not to be classed as gambling contracts under laws of Georgia, nor are the contracts otherwise condemned as unlawful for any reason. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
Cited in Doyle v. McIntyre, 71 Ga. 673 (1883); Quillian v. Johnson, 122 Ga. 49, 49 S.E. 801 (1905); Garland v. Isbell, 139 Ga. 34, 76 S.E. 591 (1912); Johnson, Lane, Space, Smith & Co. v. Lenny, 129 Ga. App. 55, 198 S.E.2d 923 (1973); Stoudemire v. HSBC Bank USA, N.A., 333 Ga. App. 374, 776 S.E.2d 483 (2015).
Constitutionality
Statute was declared to be constitutional in Neal v. Todd & Killebreed, 28 Ga. 334 (1859) (see O.C.G.A. § 13-8-3).
Wagering contract defined.
- Wagering contract has been defined to be one in which parties in effect stipulate that the parties shall gain or lose upon happening of uncertain event in which the parties have no interest, except that arising from possibility of such gain or loss. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
In gambling contract, one party is certain to lose.
- In an ordinary contract both parties may ultimately gain by entering into agreement; where in a gambling contract one of the parties is certain to lose, and by terms of such contract consideration must fall to one or the other upon determination of specified event. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
Betting upon a game of golf is gaming. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Betting on a horse race is gaming; and one who has lost a horse by betting on such a race may recover the horse by suing therefor within six months. Dyer v. Benson, 69 Ga. 609 (1882).
Side bets placed upon ultimate outcome or final result of any game whatever constitutes gaming. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Betting that one game competitor, among many, will win is a side bet upon a game. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Agreement to purchase lottery ticket enforceable.
- An agreement by parties in Georgia to purchase a Kentucky lottery ticket and share the proceeds if the ticket won was not a gambling contract unenforceable as against public policy. Talley v. Mathis, 265 Ga. 179, 453 S.E.2d 704 (1995).
Absence of purpose to deal with actual property marks distinction between legal and gambling contracts in reference to sale of personal property. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
Mere insertion of provision for forfeiture does not constitute gambling, nor make of agreement a gambling contract. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
Instrument conveying nothing more than option to buy at certain price not a gambling contract.
- An instrument should not be condemned as a gambling contract merely because the instrument conveys to one party nothing more than an option to buy at a certain price. Martin v. Citizens' Bank, 177 Ga. 871, 171 S.E. 711 (1933).
Options for the sale of real property are not void as being gambling contracts. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984).
Fact that gaming contract is made by insurance company does not render contract valid.
- Fact that loser of a bet is an insurance company and that contract is made by such company does not render such contract valid and not a gaming contract. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Broker who brings parties together for purpose of entering wagering contract cannot recover for services.
- When broker is privy to wagering contract, and brings parties together for very purpose of entering into illegal agreement, broker is particeps criminis, and cannot recover for services or losses incurred by broker in forwarding the transaction. Hutchinson v. Brown, 47 Ga. App. 82, 169 S.E. 848 (1933).
Under O.C.G.A.
§ 13-8-3 it does not matter if money won was won through an agent. - If owner can recover money lost to a winner by an agent when agency is not known to winner it seems that a loser could recover from joint principals when money is won for them by an agent. Silver v. Ford, 64 Ga. App. 679, 14 S.E.2d 132 (1941).
Money recovered for joint use of plaintiff and county education fund is split in half.
- Money paid in pursuance of a bet may be recovered back within six months after being paid, and, if not sought to be recovered back by loser within that time, any person may bring action against person to whom such money is paid in settlement of bet, and upon recovery one-half thereof shall be paid to county for use of educational fund thereof and one-half shall go to party instituting action. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Actions
When money was won jointly by several, loser may sue winners jointly.
- If three people win money jointly it does not matter how the joint intent arose, whether by contract, conspiracy or otherwise. If the people won jointly, the money can be recovered from the winners jointly by owner in suit filed within six months. Silver v. Ford, 64 Ga. App. 679, 14 S.E.2d 132 (1941).
Georgia courts have jurisdiction if gaming contract is made or bet is laid in Georgia.
- Fact that loser of bet resides in England and that money is paid from that country does not necessarily render matter not within the jurisdiction of the courts of this state, it is sufficient if gaming contract is made or bet is laid in State of Georgia. Tatham v. Freeman, 51 Ga. App. 477, 180 S.E. 871 (1935).
Text messaging to participate in televised game show.
- With regard to federal class action lawsuit brought by text messagers to recover damages from organizers and sponsors of a televised game show, O.C.G.A. § 13-8-3(b) did not authorize the text messagers to recover text message charges paid to participate in the game, as no bet or wager was involved; contract between parties did not involve a bet or wager wherein any participant was certain to lose, and consideration of 99-cent text messaging entry fee never hung in the balance. Hardin v. NBC Universal, Inc., 283 Ga. 477, 660 S.E.2d 374 (2008).
Enforcement of another state's laws is not required when those laws contravene public policy of Georgia. In diversity cases involving that issue, governing law is that of the state in which federal court is sitting. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
Comity as to laws of sister states is limited to laws not contravening public policy.- In enforcing comity in respect to laws of sister states, Georgia does so only so long as the law's enforcement is not contrary to policy of this state. Gulf Collateral, Inc. v. Morgan, 415 F. Supp. 319 (S.D. Ga. 1976).
RESEARCH REFERENCES
C.J.S.
- 17 C.J.S., Contracts, §§ 116, 215 et seq., 280. 17A C.J.S., Contracts, § 301.
ALR.
- Contracts of present sale of personal property with options as gambling contracts, 1 A.L.R. 1548.
Agreement by which division of gate money depends upon outcome of game or contest as a wagering contract, 29 A.L.R. 430.
Right of one in possession of fruits of illegal transaction to which he was not party to invoke rule against granting relief in support of such transaction, 50 A.L.R. 293.
Who is nonprofessional or casual gambler within statute relating to recovery of gambling losses which in terms or by construction distinguishes between professional and nonprofessional or casual gamblers, 141 A.L.R. 941.
Rights and remedies in respect of property pledged for payment of gambling debt, 172 A.L.R. 701.
Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.
Assignment of, or succession to, statutory right of action for recovery of money lost at gambling, 18 A.L.R.2d 999.
Action to recover money or property lost and paid through gambling as affected by statute of limitations, 22 A.L.R.2d 1390.
Recovery of money or property lost through cheating or fraud in forbidden gambling or game, 39 A.L.R.2d 1213.
Rights of owner of stolen money as against one who won it in gambling transaction from thief, 44 A.L.R.2d 1242.
Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.
Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.
Law of forum against wagering transactions as precluding enforcement of claim based on gambling transactions valid under applicable foreign law, 71 A.L.R.3d 178.
Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.
Enforceability of contract to share winnings from legal lottery ticket, 90 A.L.R.4th 784.
Right to recover money lent for gambling purposes, 74 A.L.R.5th 369.