GA Code § 13-3-5 (2021)
2021 Georgia Code|Title 13 - Contracts|Chapter 3 - Elements and Formation Generally|Article 1 - General Provisions|§ 13-3-5. Effect of Impossible, Immoral, and Illegal Conditions

 Impossible, immoral, and illegal conditions are void and are binding upon no one.   (Orig. Code 1863, § 2685; Code 1868, § 2681; Code 1873, § 2723; Code 1882, § 2723; Civil Code 1895, § 3640; Civil Code 1910, § 4225; Code 1933, § 20-111.)   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    Consideration of contract must be moral and legal. If its consideration fails to meet either of these requirements, contract is not enforceable. Baker v. American Oil Co., 90 Ga. App. 662, 83 S.E.2d 826 (1954).    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 defense rejected in property action.    - Trial court correctly rejected the buyers' impossibility defense because the fact that the buyers admittedly lost interest in the two properties and willfully failed to attend the closing did not show that it was impossible for both sales to be consummated at the same time. Ambrosio v. Giordano, 358 Ga. App. 764, 856 S.E.2d 349 (2021).    Insurance policy provisions in violation of statute automatically rendered null and void by such statute. Curtis v. Girard Fire & Marine Ins. Co., 190 Ga. 854, 11 S.E.2d 3 (1940).   Effect of impossibility not caused by act of God or of other party.    - Where 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).   Expert allowed to testify on feasibility of division of property.    - Expert testimony of a real estate development consultant regarding whether it was possible for the property owner to subdivide the property was properly allowed as the owner asserted that it was impossible for the owner to perform that task in a timely manner because of the Urban Design Commission's involvement, but the consultant's testimony was relevant to show that the property was not under the jurisdiction of the Commission; and that, under the city's subdivision ordinance, there were no restrictions that would prevent the property from being subdivided. Furthermore, summary judgment was improperly granted to the buyer as the buyer had not shown that the property owner's defense of impossibility of performance did not exist; and a jury should determine what was a reasonable amount of time within which the owner would be expected to subdivide the property. Allen v. CFYC Construction, LLC, 354 Ga. App. 890, 842 S.E.2d 297 (2020).   Effect of consent judgment.    - Where A sues B on contract and they enter into consent judgment, B cannot later set that judgment aside on basis of impossibility of performance overlooked by B. Leventhal v. Citizens & S. Nat'l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982).   Promissory note held unenforceable.    - Promissory note which was founded upon illegal consideration violated public policy and rendered the note unenforceable. Minor v. McDaniel, 210 Ga. App. 146, 435 S.E.2d 508 (1993).   Unavailability of selected arbitral forum.    - Trial court erred by finding that an arbitration agreement executed as part of a nursing home admissions process was enforceable because the unavailability of the selected arbitral forum rendered the agreement impossible to enforce since the forum selection was integral to the agreement and did not permit substitution. Miller v. GGNSC Atlanta, LLC, 323 Ga. App. 114, 746 S.E.2d 680 (2013).    Cited in Golden v. National Life & Accident Ins. Co., 189 Ga. 79, 5 S.E.2d 198 (1939); Whitehead v. Cranford, 210 Ga. 257, 78 S.E.2d 797 (1953); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 152 S.E.2d 579 (1966); Builders Transp., Inc. v. Hall, 191 Ga. App. 889, 383 S.E.2d 341 (1989); Mitchell v. Lucas, 210 Ga. App. 821, 437 S.E.2d 792 (1993).   RESEARCH REFERENCES   Am. Jur. 2d.   - 17 Am. Jur. 2d, Contracts, §§ 10, 11.   "Impossibility" of Performing Contract, 24 POF2d 269.   C.J.S.   - 17 C.J.S., Contracts, §§ 12, 141 et seq., 195.   ALR.    - Validity of agreement to pay an officer or employee of a bank or trust company to disclose the existence of, or to assist one to establish, a deposit, 18 A.L.R. 979.    Validity of provision in contract with corporation waiving liability of stockholders, 40 A.L.R. 371.    Validity of contract to influence administrative or executive officer or department, 46 A.L.R. 196; 148 A.L.R. 768.    Validity of contract to influence third person with respect to disposal of property at death or by gift during lifetime, 61 A.L.R. 646.    Validity and effect of contract, unconnected with transfer of any business or professional interest, purporting to grant exclusive right to use one's name or likeness for advertising purposes, 101 A.L.R. 492.    Conditions, conditional limitations, or contracts in restraint of marriage, 122 A.L.R. 7    Obligation of owners who unite in contract relating to property which they own in severalty, as joint, several, or joint and several, 122 A.L.R. 1336.    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, 154 A.L.R. 1445, 155 A.L.R. 1147, 156 A.L.R. 1446, 157 A.L.R. 1446, 158 A.L.R. 1446.    Validity of contractual provision by one other than carrier or employer for exemption from liability, or indemnification, for consequences of own negligence, 175 A.L.R. 8   Recovery of money or property entrusted to another for illegal purpose, but not so used, 8 A.L.R.2d 307.   Modern status of the rules regarding impossibility of performance as defense in action for breach of contract, 84 A.L.R.2d 12.   Purchaser's right to set up invalidity of contract because of violation of state securities regulation as affected by doctrines of estoppel or pari delicto, 84 A.L.R.2d 479.   Validity, construction, and effect of contract between grower of vegetable or fruit crops, and purchasing processor, packer, or canner, 87 A.L.R.2d 732.   Rights between landlord and tenant as affected by zoning regulations restricting contemplated use of premises, 37 A.L.R.3d 1018.   Validity of exculpatory clause in lease exempting lessor from liability, 49 A.L.R.3d 321.   Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.   Liability for interference with invalid or unenforceable contracts, 96 A.L.R.3d 1294.