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footballs.JPGDear Dr. John Barge:

Our law firm urges you to submit a DOE proposed rule pursuant to O.C.G.A. §50-13-4(b) that protects our young Georgia student athletes from further injury and death due to heat related illnesses as a result of sports practice in high temperatures during the most dangerous months of the summer. As you know, just last week, two Georgia high school students have died from heat exposure during football practice – two deaths that should have been completely treatable and avoidable. These deaths are two too many.

Consequently, we ask that you take action by issuing State DOE recommendations to local county school districts, in addition to submitting a proposed rule concerning school sports safety before another student’s life is put at risk.

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bizz.JPGQuestion: Dear Good Georgia Lawyer,

Recently my husband purchased a set of used mechanical engines from a dealer who advertised the engines had “never been in previous wrecks.” The dealer also never provided us with any implied “as is” warranty disclaimer until after we bought the engines. Shortly after buying the engines, we learned that they had been salvaged from previous wrecks. What are our legal rights under the Georgia Fair Business Practices Act?

Answer: Defendants engaged in unfair and/or deceptive business practices which violated the Georgia Fair Business Practices Act O.C.G.A. §10-1-390 et seq by failing to provide the implied warranty disclaimer prior to this consumer transaction. Defendant further engaged in unfair and/or deceptive business practices by expressly warranting that the engines “had never been in wrecks.”

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boat.JPGOftentimes our clients hire us to resolve interesting questions and problems. Here is a recent one that addresses the issue of express warranties:

Question:

Dear Good Georgia Lawyer,

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The Official Code of Georgia § 13-4-101 explains the elements and requirements of what is known as “accord and satisfaction.” Accord and satisfaction happens when two parties to a contract, by a subsequent contract, have satisfied the first previous contract, and the subsequent contract has been executed.

What does this mean in simple, plain English?

Well, there are two parts to this law. In a nutshell, the execution of this new, second agreement may amount to a satisfaction of the first, older former contract for two reasons:

1. First, where it is so expressly agreed by the parties (both people state so); or
2. Second, if there was no such agreement to satisfy the first contract, if the new promise is founded on a new consideration (a promise to do something like pay money), the taking of it is a satisfaction of the former agreement.

Here is a good and easy example to understand what it means:

What if I had a contractual agreement with my Uncle Bob that I would hire him to build me a backyard shed for $30,000? Uncle Bob and I agree that I will pay him $10,000 to start the project and $5000 at the end of each week until he is finished.

Unfortunately, during the course of the shed building, Uncle Bob starts drinking again and can barely pick up a hammer to nail a board in straight. The shed turns out completely lopsided and crooked. I tell Uncle Bob that there is no way I am paying him $30,000 for this shed that looks like the leaning tower of Pisa. So, Uncle Bob and I make a new agreement, subsequent from our first contract where I pay him $20,000 rather than the $30,000 I originally promised him.

What is the consideration in this new subsequent agreement? The consideration is that for a $10,000 savings, I gave up what I was entitled to: a well-constructed shed. Uncle Bob gives up his right to full price to avoid being sued for a shoddy performance. Once accord and settlement has occurred, Uncle Bob and I have given up the right to sue for more money under this settlement agreement.

Months later when Uncle Bob is back on the wagon, can he sue me for the $10,000 I was supposed to pay him from the first contract? Can I sue him because I am still mad about the ugly crooked eyesore in my backyard? No! Accord and satisfaction has occurred.

As the Georgia courts have ruled: “Accord and satisfaction is an agreement between two parties to give and accept something in satisfaction of the right of legal action which one has against the other, which when performed is a bar (a blockade) to all actions on this account. Woodstock Rd. Inv. Properties v. Lacy, 149 Ga. App. 593, 254 S.E.2d 910 (1979); M.W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 279 S.E.2d 296 (1981).

Have more questions? Read more here and consider contacting us today to schedule an appointment.
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GA state patrol.jpgThe second fatal collision occurred last week in Moultrie, Georgia this time involving a motorcycle and truck. The Georgia State Patrol investigators reported that a 1996 Toyota Tacoma, driven by an 81 year old man named James Henry Smith, failed to yield when crossing a road, hitting a motorcycle that was driven by 30 year old Randy Larry Harris.

Very sadly, Mr. Harris was ejected from his motorcycle and died at the scene. Mr. Harris, a young man at age 30, tragically left behind a loving wife, children, and large extended family from West Berrien. He was a diesel mechanic and shop supervisor at the Berrien County Bus Shop, and a member of Ebenezer Baptist Church. The elderly driver who hit him was given a citation for failing to yield.

Very sadly, motor vehicle crashes such as this one are the leading cause of injury and death in the United States. The most recent 2010 report put out by the CDC (Center for Disease Control) reports that motor vehicle crashes are the leading in fact the cause of death among those age 5-34 in the U.S. The financial impact is also significant: the lifetime costs of automobile crash deaths and injuries among Americans was listed at $70 billion a year just a few years ago.

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Sometimes unavoidable emergencies happen. Lightning strikes. Tornadoes blow through Georgia. Floods, fires, and other natural disasters occur. These are called in legal terms “acts of God.” What does Georgia law say about God’s actions having an effect on a contract?

The Official Code of Georgia Annotated § 13-4-21 actually has a section entitled “Effect of Act of God.” No, this is not a religious passage. Rather, this is referring to natural disasters and the like which are all beyond the control of humans, and how these acts have an effect on the parties responsible for performing a contract.

Not everything is considered an act of God. Wars are not. Felder v. Oldham, 199 Ga. 820, 35 S.E.2d 497 (1945). Neither are “reasonably expected rains.” Tasker v. Baugh & Johnson, 124 Ga. 846, 53 S.E. 266 (1906). Of course we all know in Georgia that heavy rains are very reasonably expected, especially in the summer time! Also, an injury (like those caused by an automobile collision) is not an “act of God” if it is caused by the negligence of man. Georgia S. & F. Ry. v. Barfield, 1 Ga. App. 203, 58 S.E. 236 (1907)

Act of God was defined by the Georgia courts over 100 years ago to mean any “accident produced by physical causes which are irresistible; such as lightning, storms, perils of sea, earthquakes, inundations, sudden death, or illness. [Also] an act of God excludes all idea of human agency.” Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983 (1901).

The statute clearly explains that if the performance of a contract becomes impossible as a result of “an act of God,” such impossibility shall excuse the non performance of the contract, except where, by proper prudence, such impossibility might have been avoided by the person who had promised to do something.

It is always good to have an “Act of God” clause in a contract in the unfortunate rare event something does happen which makes the contract impossible to perform. For example, what if I decide to rent your big red barn for my wedding day reception country hoe-down shin-dig? It is the perfect space for the wedding reception luncheon and has a nice wood floor for a dance. It is also perfect to fit the 200 plus guests I plan to invite.

You and I have a contract which states that I agree to pay you $1000 to rent your big red barn on my wedding day. Unfortunately however, lightening strikes and your big red barn burns down to the ground one month before I am about to get married.

What does the law say about the legal obligations of our contract? Can I sue you now for not being able to perform your end of the bargain—letting me host my wedding reception in your barn? Well, the law is clear. O.C.G.A. § 13-4-21 says no. An “act of God” has intervened and it is now impossible to perform your end of the contract. Now it is likely that you will need to return the $1000 to me in order to avoid a claim of “unjust enrichment,” nevertheless, I cannot sue you for failing to provide me your big red barn for my wedding day.

This is an example of how the legal theory of “impossibility” can be a strong defense to performing a contract. A good contract will have an actual “Acts of God” clause in it. Whether you are an atheist or devoutly religious, an “Acts of God” clause in a contract obviously refers to what happens if there is some emergency (not caused by a human) that renders the contract impossible to perform. It is always good to have the parties agree on “plan B” ahead of time, in writing, as part of the contract.

To understand your contractual legal rights and obligations better, it is always a good idea to consult with a good Georgia lawyer.
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contract fists.JPGThis is part two of our article about cancelling contracts within a three day cooling off period in Georgia. The three day cooling off period is actually federal regulation which is very narrowly applied, so make sure you carefully read part one of our article before reading the following.

It is also important to understand that even if the three day cooling off period does not apply to the facts of your case, there may be other conditions and reasons (fraud, misrepresentation, mental/age incapacity, illegality unfair trade practices, and more) that may permit you to rescind (get out of) a contract. Thus, it is is well worth your while to schedule a legal consultation to immediately determine your rights.

Nevertheless, if in fact the three day cooling off period does apply, in connection with any door-to-door sale or sale that is anywhere other than the place of business of the seller, (i.e. NOT the seller’s store but at a place like your home, a conference center, a dormitory, etc…), it constitutes an deceptive act or unfair practice for any seller to:

(a) Fail to give the buyer a fully completed copy of any contract in the same language, (e.g., Spanish), that was primarily used in the oral sales portion of the presentation showing the transaction date, name and address of the seller, and near the section in the contract for the buyer’s signature or on the front page of a receipt, the following notice of cancellation, in bold face, in a minimum of size ten font stating:

“You, the buyer, can cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the notice of cancellation attached for explanation of this right.”

(b) Fail to furnish each buyer, a notice of cancellation that explains that they may cancel the transaction, without any obligation or penalty, within THREE BUSINESS DAYS from the above date.

If the buyer cancels, they must receive back their money within ten days and the buyer must make available to the seller at his or her home, any product that had been delivered to them under the contract. They need to return the product in good condition, or they must follow the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.

If the buyer makes the goods available to the seller and the seller does not pick them up within 20 days of the date of Notice of Cancellation, the buyer may keep or dispose of them. If the buyer fails to return the goods, then they remain liable for the contract.

(c) Fail, before providing copies of the “Notice of Cancellation” to the buyer, to complete the notices by entering the name of the seller, the seller’s business address, the sales transaction date, and the date of cancellation.

(d) Fail to inform the buyer orally, at the time of the contract, of the buyer’s right to cancel.

(f) Misrepresent the buyer’s right to cancel.

(g) Fail to honor any valid notice of cancellation by refunding payments, etc.

(h) Sell the contract to a third party before the three day cancellation period is up.

(i) Fail, within 10 business days of receiving cancellation, to notify the buyer whether they intend to repossess any goods that were sold.

As stated earlier, this three day cooling off period falls under a federal regulation, specifically from the FTC (Federal Trade Commission) which outlines the rules concerning the cooling off period for sales made at homes or certain other locations. The three day cooling off period only applies to a specific, select type of sales. However, as mentioned previously, we cannot over-emphasize the importance of obtaining legal counsel, because even though the “three day cooling off period” may not apply in your situation, other legal theories may apply which might permit you to rescind (get out of) a contract.

However, time is of the essence in all of these situations. Thus, it is important to immediately meet with an attorney who can actually sit down and review your contract with you and listen to all the facts and circumstances of your situation in order to be able to properly advise you of your legal rights.
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Generally, there is no cooling off period in Georgia except for very rare exceptions, however that doesn’t mean you necessarily are trapped in a contract. There are other conditions and reasons (for example fraudulent misrepresentation, illegality, incapacity, unfair business practices, and more) that may permit you to rescind (get out of) a contract. However, time is of the essence so it is essential to seek a good Georgia lawyer who can help interpret your contract and advise you of your legal rights concerning the facts of your case.

In general, the “three day cooling of period” applies under federal law for only very specific contracts.

Three Day Rule Generally Applies Only Under The Following Conditions:

1. A seller went “door to door” and sold, leased or rented you a consumer good or service with a purchase price of $25 or more and;

2. They (not you) solicited the sale (even if it was following an invitation by you the buyer), and;

3. The offer to purchase was made anywhere other than the place of business of the seller, i.e. NOT the seller’s store but at a place like your house, a convention center, a dorm, a workplace, etc…

There Is No Three Day Cooling Period If The Sale Was:

(1) Made pursuant to prior negotiations you the buyer had while visiting a retail business location which had a permanent fixed location (like a store) where the goods were exhibited (like a furniture shop) or the services were offered for sale on a continuing basis (like a computer repair shop); or

(2) The consumer is afforded the right of rescission by the provisions of the Consumer Credit Protection Act; or

(3) The buyer initiated the contact and the goods or services were required for an immediate personal emergency of the buyer, and the buyer gave the seller a separate dated and signed personal statement in the buyer’s handwriting explaining the situation, acknowledging and waiving the right to cancel the contract within three days; or
(4) The sale was conducted and sold entirely by phone or mail; and without any other contact prior to delivery of the goods or performance of the services; or
(5)The sale was where the buyer initiated the contact and requested the seller to visit the buyer’s home for the purpose performing maintenance or repairing personal property. (However, if in the course of such a visit, the seller sells the buyer the right to obtain additional services or goods other than replacement parts necessarily used in performing the maintenance or in making repairs, the sale of those additional services and goods do not fall within this exclusion); or
(6) Pertaining to the sale or rental or real estate property, to the sale of insurance, or to the sale of securities or commodities by a broker-dealer seller who is registered with the SEC.

There are always exceptions to the rule, so if you suspect you’ve been “done wrong” immediately seek legal counsel to learn what your legal rights and obligations are.
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