Mere inadequacy of price, though not sufficient to rescind a contract, may justify a court in refusing to decree a specific performance, as may any other fact showing the contract to be unfair, unjust, or against good conscience.
(Orig. Code 1863, § 3122; Code 1868, § 3134; Code 1873, § 3190; Code 1882, § 3190; Civil Code 1895, § 4040; Civil Code 1910, § 4637; Code 1933, § 37-805.)
Law reviews.- For comment on Jones v. Smith, 206 Ga. 162, 56 S.E.2d 462 (1949), see 12 Ga. B.J. 333 (1950).
JUDICIAL DECISIONSANALYSIS
This section embraces more than inadequacy of price; it also covers fairness of contract as to both parties. Jones v. Smith, 206 Ga. 162, 56 S.E.2d 462 (1949), commented on in 12 Ga. B.J. 333 (1950); Horner v. Savannah Valley Enters., Inc., 234 Ga. 371, 216 S.E.2d 113 (1975).
Specific performance is not remedy which either party can demand as matter of absolute right, and will not in any given case be granted unless strictly equitable and just. Bullard v. Bullard, 202 Ga. 769, 44 S.E.2d 770 (1947); Jones v. Smith, 206 Ga. 162, 56 S.E.2d 462 (1949); Treadwell v. Treadwell, 216 Ga. 156, 115 S.E.2d 535 (1960).
One who seeks aid of equity must come into court with clean hands. Byck v. Lawton, 218 Ga. 858, 131 S.E.2d 176 (1963).
If family settlement is involved, court will not inquire into adequacy or inadequacy of consideration. Hancock v. Hancock, 223 Ga. 481, 156 S.E.2d 354 (1967).
When equity takes jurisdiction to give specific performance it will retain it until full and satisfactory justice is accomplished between the parties. McDonald v. Davis, 43 Ga. 356 (1871); Miller v. Watson, 139 Ga. 29, 76 S.E. 585 (1912).
Cited in Hulgan v. Gledhill, 207 Ga. 349, 61 S.E.2d 473 (1950); Bailey v. Bell, 208 Ga. 715, 69 S.E.2d 272 (1952); Payne v. Jones, 211 Ga. 322, 86 S.E.2d 3 (1955); Sikes v. Sims, 212 Ga. 391, 93 S.E.2d 6 (1956); Burnam v. Wilkerson, 220 Ga. 590, 140 S.E.2d 871 (1965); Abdill v. Barden, 221 Ga. 591, 146 S.E.2d 299 (1965); Anthony v. Morris Hyles, Inc., 221 Ga. 847, 148 S.E.2d 326 (1966); Logan v. Phillips, 222 Ga. 714, 152 S.E.2d 384 (1966); Logan v. Logan, 223 Ga. 574, 156 S.E.2d 913 (1967); Penta Invs., Inc. v. Robertson, 230 Ga. 401, 197 S.E.2d 358 (1973); Deal v. Dickson, 231 Ga. 366, 202 S.E.2d 41 (1973); Moore v. Buiso, 235 Ga. 730, 221 S.E.2d 414 (1975); Kelly v. Vargo, 261 Ga. 422, 405 S.E.2d 36 (1991); Owenby v. Holley, 256 Ga. App. 13, 567 S.E.2d 351 (2002).
Inadequacy of Price Generally
Specific performance of contract may be refused when consideration is inadequate, though the court will not rescind it. Hunt v. Jackson Formby's Guardian, 43 Ga. 79 (1871).
Court should not deny decree for specific performance merely upon ground of inadequacy of consideration, unless there is such a gross disparity of consideration as to shock the moral conscience and to amount in itself to evidence of fraud, the adequacy of consideration being generally a matter to be determined by the parties for themselves. Whitehead v. Dillard, 178 Ga. 714, 174 S.E. 244 (1934); McLoon v. McLoon, 220 Ga. 18, 136 S.E.2d 740 (1964).
Specific performance may be denied when gross inadequacy shown.
- When the inadequacy of price is so great as to give to the contract the character of unreasonableness and hardship, the court and jury will stay the exercise of their discretionary power in enforcing a specific performance. Hotaling v. Anderson, 226 Ga. 327, 175 S.E.2d 5 (1970).
Shareholders failed to rebut corporations showing price offered for shares was fair.
- Corporation was properly granted specific performance of a shareholder agreement requiring the corporation's former employees to sell back their shares at the price the corporation offered as the corporation submitted an affidavit calculating the corporation's "going concern" value - the formula for determining share value set out in the shareholder agreement - and the employees offered no evidence countering the affidavit. Furthermore, since there were no allegations that there was anything unfair, unjust, or violative of the conscience about the agreement, the shareholders' equitable defenses were inapplicable to the corporation's claim for specific performance of the agreement. Clawson v. Intercat, Inc., 294 Ga. App. 624, 669 S.E.2d 671 (2008), cert. denied, No. S09C0462, 2009 Ga. LEXIS 199 (Ga. 2009).
Determination of Fairness
Case by case method of determination of fairness.
- A provision in a contract for deferred payments, without a provision for security to the seller, does not necessarily make a contract inequitable, unjust, and unenforceable. The particular circumstances of the case would determine whether such a contract is fair and just to both parties. Chewning v. Brand, 230 Ga. 255, 196 S.E.2d 399 (1973).
Equity will never decree specific performance of fraudulent, illegal, or hard and unconscionable bargain. Swint v. Carr, 76 Ga. 322, 2 Am. St. R. 44 (1886).
Contract upon which specific performance is sought must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it. Estes v. Winn, 136 Ga. 344, 71 S.E. 470 (1911); Miller v. Watson, 139 Ga. 29, 76 S.E. 585 (1912); Treadwell v. Treadwell, 216 Ga. 156, 115 S.E.2d 535 (1960).
Petition which did not give with precision the terms of contract for sale of land or its date, and which did not allege the extent and value of the services rendered or the value of the lands involved, which values must be set forth in order to show that the contract which it sought to enforce is one not unfair, unjust, or against good conscience, did not state a cause of action for specific performance. Johns v. Nix, 196 Ga. 417, 26 S.E.2d 526 (1943); Jenkins v. Evans, 202 Ga. 423, 43 S.E.2d 501 (1947); Howington v. Juhan, 218 Ga. 748, 130 S.E.2d 822 (1963); Walker v. Bush, 234 Ga. 366, 210 S.E.2d 285 (1975); Moody v. Mendenhall, 238 Ga. 689, 234 S.E.2d 905 (1977).
Where a petition for specific performance of an alleged lease of lands, to be used by the lessee for an airfield does not allege any sum of money to be the fair, just, and equitable rental value of the lands, and the alleged lease provides that the lessor shall be paid 10 percent of the passenger traffic, and 5 percent for instructions, there is nothing upon which to base a decision that the contract is fair, just, and equitable, and in good conscience should be performed. Harris v. Abney, 208 Ga. 518, 67 S.E.2d 724 (1951).
In order for a suit for specific performance of a contract for the sale of land to prevail, the plaintiff must prove the value of the property so as to enable the court to determine that the contract was fair, just, and not against good conscience. Morgan v. Mitchell, 209 Ga. 348, 72 S.E.2d 310 (1952); Jones v. Dallas, 243 Ga. 124, 252 S.E.2d 603 (1979).
Where there was a lack of necessary and indispensable allegations as to adequacy of consideration, the petition failed to state a cause of action for specific performance of an option to sell property, the only relief sought; and the court should have sustained the defendants' general demurrer (now motion to dismiss) raising that question and dismissed the petition. Alexander v. American Legion Post No. 28, 209 Ga. 285, 71 S.E.2d 627 (1952).
Where the alleged contract sued on is based on an oral agreement to convey or devise land in consideration of the performance of ordinary personal services, the petition must not only show that the contract is precise in its terms, but must also allege the value of such service and the value of the land or specific data from which such relative values can be determined. Treadwell v. Treadwell, 216 Ga. 156, 115 S.E.2d 535 (1960).
Summary judgment inappropriate when fairness and value issues remain.
- Trial court erred in granting summary judgment to the option holder on the holder's specific performance claim against the option grantors; issues of fairness and value remained regarding the option contract, thus precluding summary judgment. Henry v. Blankenship, 275 Ga. App. 658, 621 S.E.2d 601 (2005).
Court will not decree specific performance when contract terms unclear.
- A court of equity will not decree specific performance of a contract for the sale of land, where it is not clear that the terms of the contract were agreed upon and understood. Beller & Gould v. Lisenby, 248 Ga. 353, 283 S.E.2d 237 (1981).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, §§ 25, 26. 71 Am. Jur. 2d, Specific Performance, § 5.
ALR.
- Right of vendor to specific performance with abatement from purchase price where he is unable to perform as to part of property, 81 A.L.R. 900.
Fraud or misrepresentation not sufficient to prevent or support other forms of relief as ground for refusing specific performance of land contract, 87 A.L.R. 1345.
Specific performance of contract or option as affected by unexecuted provision for determination of price by arbitrators or appraisers, 167 A.L.R. 727.
Improvement of property after execution of contract or option as affecting right of purchaser or optionee to specific performance, 174 A.L.R. 699.
Nature of deed which may be required of vendor who is unable to convey title for which he has contracted, 13 A.L.R.2d 1462.
Necessity and sufficiency of allegation, in a suit for specific performance of a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.