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Elements and Capacity

What the law actually asks for

A contract is enforceable when four things line up, and Georgia says so in a single sentence. O.C.G.A. 13-3-1 lists exactly four essentials: capable parties, a consideration moving to the contract, assent to the terms, and a subject matter on which the contract can operate. That is the whole list.

The exam trap is the tempting extras. Earnest money and signatures accompany nearly every real estate deal, so candidates assume they are elements. Neither is. Recording and delivery are requirements for deeds, not for contract formation. Notarization and a definite closing date are formalities the statute never demands. And courts do not inquire into the adequacy of consideration, only that some consideration exists.

Executory, executed, bilateral, unilateral

A signed sales contract is executory until closing, because performance still remains to be done. It becomes executed only when all parties have fully performed, which happens at closing.

It is also bilateral, because each side exchanged a promise: the buyer promises to pay, the seller promises to convey. A unilateral contract is accepted only by performance, which describes options and open listings, not sales contracts. Pairing "executed" with a contract still awaiting closing is wrong no matter what the second half of the answer says.

Capacity: minors

Under O.C.G.A. 13-3-20 a minor's contract is generally voidable, not void. A minor who keeps the benefit after turning 18, the age of majority, has ratified the contract and is bound. Do not confuse the right to disaffirm with the six-year statute of limitations on written contracts, and do not reach for the Statute of Frauds: a signed written land contract satisfies it.

Capacity: adjudicated incompetents

Georgia rule. Under O.C.G.A. 13-3-24, once a person has been adjudicated incompetent and a guardian appointed, contracts are absolutely void until the guardianship is dissolved. A void contract cannot be ratified at all, so the guardian's silence changes nothing. The protection runs to the incompetent party, not to the other side. The lucid interval rule, which makes a contract merely voidable, applies only to a person never adjudicated incompetent.

Knowledge check

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