2020 Georgia Code
Title 10 - Commerce and Trade
Chapter 1 - Selling and Other Trade Practices
Article 15 - Deceptive or Unfair Practices
Part 2 - Fair Business Practices Act
§ 10-1-401. Limitation of Actions; Right to Set Off Damages or Penalties Not Limited

1. No private right of action shall be brought under this part:
   1. More than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or
   2. More than two years after the termination of any proceeding or action by the State of Georgia, whichever is later.
2. Damages or penalties to which a person is entitled pursuant to this part may be set off against the allegation of the person to the seller and may be raised as a defense to a suit on the obligation without regard to the time limitations prescribed by this Code section.

(Ga. L. 1975, p. 376, § 17; Ga. L. 2015, p. 1088, § 2/SB 148.)

The 2015 amendment, effective July 1, 2015, inserted "private right of" in the introductory language of subsection (a).

- For article, "Acquisition of Trademark Rights Under United States and Georgia Law," see 7 Ga. St. B. J. 14 (2001).

JUDICIAL DECISIONS

Application to alleged unfair trade practices.

- Two-year statute of limitation under O.C.G.A. § 10-1-401 applied to a vending machine purchaser's unfair trade practices claim against the sellers. League v. United States Postamatic, Inc., 235 Ga. App. 171, 508 S.E.2d 210 (1998).

- Plaintiffs' cause of action under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., was barred by the two year statute of limitations since the action was commenced more than two years after the defendant obtained the plaintiffs' property without complying with statutory requirements, notwithstanding the plaintiffs' contention that the statute of limitations did not begin to run until the plaintiffs discovered the plaintiffs had been injured, which occurred when the plaintiffs received notice of a dispossessory action, since the failure of the defendant to provide a written contract or notice of the right to rescind as required by statute was evident and complete at the time the property was transferred to the defendant. Greene v. Team Props., Inc., 247 Ga. App. 544, 544 S.E.2d 726 (2001), overruled on other grounds, Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).

O.C.G.A. § 10-1-401(a)(1) did not bar a home buyer's claim under the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., because the buyer did not suffer any actual damages at the time of the alleged violation, and could not have suffered any such damages at least until the homebuilder conveyed the house to the buyer without complying with code requirements or used the contractual language in question to deny liability; therefore, the buyer's cause of action did not accrue until less than two years prior to the date suit was filed. Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005).

- Because plaintiffs knew or should have known of alleged Sale of Business Opportunity Act, O.C.G.A. § 10-1-410 et seq., violations more than two years before bringing claims, the trial court properly held that the plaintiff's claims were time-barred. Touchton v. Amway Corp., 247 Ga. App. 269, 543 S.E.2d 782 (2000).

The 30-day notice requirement of O.C.G.A. § 10-1-399(b) does not toll or extend the limitations period provided for in O.C.G.A. § 10-1-401 and does not constitute the bringing of an action. Greene v. Team Props., Inc., 247 Ga. App. 544, 544 S.E.2d 726 (2001), overruled on other grounds, Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).

- Because plaintiff dry cleaners sued defendant natural gas supplier 33 months after the alleged misdeeds, and it was not alleged that any Georgia Public Service Commission proceedings had been initiated that would have postponed the accrual date under O.C.G.A. § 10-1-401(a)(2), the O.C.G.A. § 10-1-393(a) claim was time-barred by § 10-1-401(a)'s two-year limitations period. Byung Ho Cheoun v. Infinite Energy, Inc., F.3d (11th Cir. Jan. 27, 2010)(Unpublished).

Cited in Hornsby v. Phillips, 190 Ga. App. 335, 378 S.E.2d 870 (1989).

RESEARCH REFERENCES

ALR.

- Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

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.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.