2020 Georgia Code
Title 13 - Contracts
Chapter 4 - Modification, Extinguishment, and Renewal
Article 2 - Performance
§ 13-4-24. Requirements for and Effect of Tender Generally

A tender properly made may be equivalent to performance. The tender must be certain and unconditional, except for a receipt in full or delivery of the obligation, and may be made by an agent and to an agent authorized to receive. The tender must be in full payment of the specific debt, and not in part, and may be made at any time before trial. If tender is rejected on grounds unrelated to informality, informality cannot afterward be raised in objection to the tender.

(Orig. Code 1863, § 2815; Code 1868, § 2823; Code 1873, § 2874; Code 1882, § 2874; Civil Code 1895, § 3728; Civil Code 1910, § 4322; Code 1933, § 20-1105.)

- For article discussing the historical background of the doctrine of tender and its application in Georgia, see 21 Mercer L. Rev. 413 (1969).

ANALYSIS

• General Consideration
• Medium or Form of Tender
• Incomplete Tender
• Conditional Tender
• When Tender Excused

To constitute valid tender, amount offered must be certain, unconditional, and in full of obligation. Irvin v. Locke, 200 Ga. 675, 38 S.E.2d 289 (1946).

Valid unconditional continuous tender stops running of interest. Bank of Early v. Broun, 156 Ga. App. 445, 274 S.E.2d 802 (1980).

Merely evidencing willingness to pay, or offer or intention to make tender not sufficient. Jolly v. Jones, 201 Ga. 532, 40 S.E.2d 558 (1946).

Mere written proposal to pay money, with no offer of cash, not tender. Angier v. Equitable Bldg. & Loan Ass'n, 109 Ga. 625, 35 S.E. 64 (1900).

While the mortgagors sent a notice to the loan servicer offering to tender a payment of the full amount due, no actual money was tendered in the letter, thus, there was no valid tender, so cancellation of the deed was not available under O.C.G.A. § 13-4-24. Edward v. BAC Home Loans Servicing, L.P., F.3d (11th Cir. Aug. 16, 2013)(Unpublished).

- Borrower who has executed deed to secure debt is not entitled to injunction against sale of property under power in deed unless borrower first pays or tenders to creditor amount admittedly due. Same rule applies where one standing in place of borrower seeks injunction to prevent transferee or assignee of such deed from selling property for purpose of satisfying secured debt. Crockett v. Oliver, 218 Ga. 620, 129 S.E.2d 806 (1963).

- Debtor failed to state a claim for wrongful foreclosure because the debtor did not allege that the debtor tendered payment as required by O.C.G.A. § 13-4-24. Lindsay v. Beggins (In re Lindsay), Bankr. (Bankr. N.D. Ga. Mar. 26, 2018).

- Proper tender of a fine would be equivalent to the fine's payment, when such tender is made after time which law allows for paying fine, it does not have effect of payment. Pappas v. Aldredge, 192 Ga. 482, 15 S.E.2d 718 (1941).

- Tender on offer to redeem property from taxes not only must be made in due time and manner, but be continuous, with continuous offer to pay; and if such continuity is not otherwise shown, at least bringing of money into court on filing of suit is necessary in place of continuous offer by pleading. Durham v. Crawford, 196 Ga. 381, 26 S.E.2d 778 (1943).

Worthless check, where worthlessness unknown to person to whom tendered, cannot constitute valid legal tender of a debt, even though person to whom check is tendered has waived fact that tender is made in form of a check. Manry v. Phoenix Mut. Life Ins. Co., 42 Ga. App. 24, 155 S.E. 43 (1930).

- Tender of check drawn upon bank in which drawer had not on deposit, either at that time or at any time afterwards, funds sufficient to pay check, does not constitute valid legal tender. Manry v. Phoenix Mut. Life Ins. Co., 42 Ga. App. 24, 155 S.E. 43 (1930).

- It is immaterial that person tendering worthless check intends to make check good by deposit of sufficient funds in bank before check is presented for payment, and will do so if check is accepted, and that check if accepted will be paid; the check nevertheless is at the time, by reason of insufficiency of funds in bank to cover the check, of no value, and for this reason is not a valid legal tender. Manry v. Phoenix Mut. Life Ins. Co., 42 Ga. App. 24, 155 S.E. 43 (1930).

- When creditor refuses to accept proper tender, claim is not extinguished, nor is debtor harmed by refusal. Debtor still has the debtor's money. The debtor may lend it or use it in business. If, however, the debtor wishes to stop running of interest, or to prevent accrual of costs, the debtor must keep the tender good. But where creditor has collateral, mortgage, or other form of security upon property of debtor, failure to accept legal tender discharges lien which was intended to secure payment. Bourquin v. Bourquin, 120 Ga. 115, 47 S.E. 639 (1904); Ragan v. Newton, 27 Ga. App. 534, 109 S.E. 412 (1921).

When creditor refuses to accept proper tender in payment of debt, refusal does not extinguish debt, but creditor loses collateral benefits under security deed given to secure the debt; however, if proper tender is refused by creditor under claim of right bona fide because of mistake on creditor's part as to creditor's legal rights, refusal does not operate as discharge of security. Lanier v. Mandeville Mills, 183 Ga. 716, 189 S.E. 532 (1937).

Refusal of creditor to accept proper tender in payment of debt does not extinguish debt, but creditor loses collateral benefits under deed given to secure debt. Ward v. McGuire, 213 Ga. 563, 100 S.E.2d 276 (1957).

Refusal of proper tender discharges lien. Creditor, by refusing to accept, does not forfeit the creditor's right to the thing tendered, but the creditor does lose all collateral benefits or securities. Lanier v. Romm, 131 Ga. App. 531, 206 S.E.2d 588 (1974).

If payment is refused when legally tendered, such tender satisfies statutory requirement of payment. Anderson v. Barron, 208 Ga. 785, 69 S.E.2d 874 (1952).

Plea of tender must state time when made and aver continuity of tender. Cothrans & Elliott v. Mitchell, 54 Ga. 498 (1875); Toomey v. Read & Gresham, 133 Ga. 855, 67 S.E. 100 (1910).

Bringing money into court is equivalent to continuous tender in bill. Clower v. Fleming, 81 Ga. 247, 7 S.E. 278 (1888).

Payment of funds into court constituted a valid tender. Bank of Early v. Broun, 156 Ga. App. 445, 274 S.E.2d 802 (1980).

- Just as providing a copy of a certified check is not the same as producing the actual check, stating that funds are in an attorney's escrow account is not the same as providing actual funds. Because the plaintiffs failed to provide a valid tender, their wrongful foreclosure claim failed. Thakkar v. Bay Point Capital Partners, LP, Bankr. (Bankr. N.D. Ga. Jan. 12, 2018).

- When a seller failed to pay the closing costs under a buy-back provision in its contract with the buyers, the buyers were properly granted a declaratory judgment which held that the seller was responsible to pay the closing costs, and an offer to do so was insufficient to satisfy this duty, and did not satisfy O.C.G.A. § 13-4-24. Tullis Devs., Inc. v. 3M Constr., Inc., 282 Ga. App. 335, 638 S.E.2d 787 (2006).

- When the trial court ordered specific performance of an obligation to sell land, the owner refused to convey the land when the purchaser offered to pay a sum less than the stated contract price, and the trial court again ordered specific performance, and made further direction concerning payment of the purchase price, no additional "tender," was necessary to preserve the buyer's right to acquire the property. Gallogly v. Bradco, Inc., 260 Ga. 311, 392 S.E.2d 529 (1990).

Cited in Doe v. Roe, 39 Ga. 91 (1869); Hiller v. Howell, 74 Ga. 174 (1884); Cutter-Tower Co. v. Clements, 5 Ga. App. 291, 63 S.E. 58 (1908); Wiggins v. Sheppard, 145 Ga. 835, 90 S.E. 56 (1916); Clyde v. Stegers & Sons Piano Mfg. Co., 22 Ga. App. 192, 95 S.E. 734 (1918); Turner v. Williams, 29 Ga. App. 751, 116 S.E. 553 (1923); Jeanes v. Atlanta & Lowry Nat'l Bank, 34 Ga. App. 568, 130 S.E. 353 (1925); Bigham v. Bank of Madison, 51 Ga. App. 643, 181 S.E. 197 (1935); Forrester v. Lowe, 192 Ga. 469, 15 S.E.2d 719 (1941); Renfroe v. Butts, 192 Ga. 720, 16 S.E.2d 551 (1941); Lively v. Munday, 201 Ga. 409, 40 S.E.2d 62 (1946); Anagnostis v. Alexandrou, 77 Ga. App. 742, 49 S.E.2d 774 (1948); Battles v. Anchor Rome Mills, Inc., 80 Ga. App. 47, 55 S.E.2d 156 (1949); B-X Corp. v. Jeter, 210 Ga. 250, 78 S.E.2d 790 (1953); Drennon Food Prods. Co. v. Drennon, 104 Ga. App. 19, 120 S.E.2d 902 (1961); Burnam v. Wilkerson, 217 Ga. 657, 124 S.E.2d 389 (1962); Smith v. Bank of Acworth, 218 Ga. 643, 129 S.E.2d 857 (1963); Smith v. Agan, 111 Ga. App. 536, 142 S.E.2d 291 (1965); State Hwy. Dep't v. Hewitt Contracting Co., 115 Ga. App. 606, 155 S.E.2d 422 (1967); Hall v. Heard, 223 Ga. 659, 157 S.E.2d 445 (1967); Pharr v. Woodall, 226 Ga. 1, 172 S.E.2d 404 (1970); White v. Turbidy, 227 Ga. 825, 183 S.E.2d 363 (1971); Stokes v. Walker, 131 Ga. App. 550, 206 S.E.2d 564 (1974); Security Mgt. Co. v. King, 132 Ga. App. 618, 208 S.E.2d 576 (1974); Joines v. Shady Acres Trailer Court, Inc., 132 Ga. App. 854, 209 S.E.2d 268 (1974); New House Prods., Inc. v. Commercial Plastics & Supply Corp., 141 Ga. App. 199, 233 S.E.2d 45 (1977); Hall v. First Nat'l Bank, 145 Ga. App. 267, 243 S.E.2d 569 (1978); Head v. Walker, 243 Ga. 108, 252 S.E.2d 440 (1979); Jessee v. First Nat'l Bank, 154 Ga. App. 209, 267 S.E.2d 803 (1980); Cotton States Mut. Ins. Co. v. McFather, 255 Ga. 13, 334 S.E.2d 673 (1985); Beckworth v. Beckworth, 255 Ga. 241, 336 S.E.2d 782 (1985); Porter v. City of Atlanta, 259 Ga. 526, 384 S.E.2d 631 (1989); Great S. Midway, Inc. v. Hughes, 223 Ga. App. 643, 478 S.E.2d 400 (1996).

Failure to object at time of tender amounts to waiver of form of tender, and form of tender cannot afterwards be urged as invalidating tender. Manry v. Phoenix Mut. Life Ins. Co., 42 Ga. App. 24, 155 S.E. 43 (1930).

It is immaterial that actual cash was not tendered where creditor failed to object to tender on that ground and at first opportunity waived the creditor's right to insist on payment in cash. Capital Auto. Co. v. Rick, 134 Ga. App. 830, 216 S.E.2d 601 (1975).

- While strictly speaking a check is not legal tender, if creditor accepts the check and makes no objection to specie of payment, this constitutes waiver of form of tender. Brock v. Baker, 128 Ga. App. 397, 196 S.E.2d 875 (1973).

Money order suffices as medium of payment absent objection, although contract calls for legal tender. Associates Disct. Corp. v. Gentry, 95 Ga. App. 26, 96 S.E.2d 640 (1957).

- If plaintiff merely refused check tendered without giving reason, which plaintiff had a right to do, it cannot be said that plaintiff waived defect which rendered tender ineffective. Carter v. Whatley, 97 Ga. App. 10, 101 S.E.2d 899 (1958).

- If performance of either condition or promise requires payment of money, and tender is made of valid check or of some form of currency which is not legal tender for purpose, and tender is rejected without statement that ground of objection is medium of payment, tender is not thereafter open to that objection, if legal tender could have been obtained and seasonably tendered had objection to medium of tender been stated. Smith v. Standard Oil Co., 226 Ga. 339, 175 S.E.2d 14 (1970).

Tender of less than full claim at time made is not a good tender. Allstate Ins. Co. v. Austin, 120 Ga. App. 430, 170 S.E.2d 840 (1969), cert. dismissed, 226 Ga. 93, 172 S.E.2d 602 (1970).

- Tender of check offered merely as part payment to be applied as credit to amount due on note is invalid. Jones v. Peacock, 29 Ga. App. 240, 114 S.E. 646 (1922).

- Incomplete, and consequently ineffectual tender can create no rights, and position of parties remains same as if none had been made. Smith v. Pilcher, 130 Ga. 350, 60 S.E. 1000 (1908).

Surety not released by incomplete tender, made by surety's principal and rejected by creditor. Hiller v. Howell, 74 Ga. 174 (1884).

Only proper conditions attached to valid tender are receipt in full or surrender of obligation, and such tender cannot be predicated on a condition unauthorized by law. Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 S.E.2d 852 (1960).

Section's two exceptions are the only proper conditions to a valid tender. Adcock v. Sutton, 224 Ga. 505, 162 S.E.2d 732 (1968).

Tender of money not vitiated by being coupled with demand for receipt for amount paid, or, if indebtedness be represented by writing, by being coupled with demand for writing, if extinguished by payment. Lanier v. Romm, 131 Ga. App. 531, 206 S.E.2d 588 (1974).

- Tender must be absolute and, if not so, it fails, even though only condition accompanying it is such as to impose performance of duty actually owing by one to whom purported tender is made. Southern Motors of Savannah, Inc. v. Krieger, 86 Ga. App. 574, 71 S.E.2d 884 (1952), disapproved sub nom. Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977).

Taxpayer may not attach condition to tender that money be received in full payment of claim. If one owes money, one should pay it without restrictions. Adcock v. Sutton, 224 Ga. 505, 162 S.E.2d 732 (1968).

- When release attached in this case as condition to be accepted prior to cashing check was not only receipt in full for amount of check, but also contained release of all claims, including other claims than that under consideration, tender was invalid because it was conditioned on improper demand. Edwards-Warren Tire Co. v. Coble, 102 Ga. 106, 115 S.E.2d 852 (1960).

Tender made upon condition that certain security deed be transferred to plaintiff is incomplete tender. Henderson v. Willis, 160 Ga. 638, 128 S.E. 807 (1925).

- Tender to holder of bond of title, conditioned upon conveyance called for in bond, is invalid. De Graffenreid v. Menaed, 103 Ga. 651, 30 S.E. 560 (1898); Elder v. Johnson, 115 Ga. 691, 42 S.E. 51 (1902).

Tender of amount due by the obligee in bond for title on condition that obligor make and deliver to obligee conveyance called for by bond for title is not a valid tender in that it is not unconditional. Heath v. Miller, 205 Ga. 699, 54 S.E.2d 432 (1949).

- Insurer's offer of the amount of the insurer's policy limits in exchange for a release of the remaining amount owed by the insurer's insureds was ineffective as a conditional tender. Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 489 S.E.2d 53 (1997).

When Tender Excused

Tender excused when party to whom due declares it will be refused.

- Formal tender unnecessary where express declarations are made by party to whom money is payable that the party will not accept it if tendered. Arnold v. Empire Mut. Annuity & Life Ins. Co., 3 Ga. App. 685, 60 S.E. 470 (1908).

To entitle plaintiff to specific performance of contract for purchase of land, plaintiff must make unconditional tender of purchase money due; but tender by vendee before suit is excused if vendor, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused. Smith v. Standard Oil Co., 226 Ga. 339, 175 S.E.2d 14 (1970).

Tender by the vendee before suit is excused if the vendor, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused. Good v. Tri-Cep, Inc., 248 Ga. 684, 285 S.E.2d 527 (1982).

When party gives written notice of absolute refusal to comply with contract, tender is excused. Hunt v. Formby, 43 Ga. 79 (1871).

- Even when one party does not properly tender materials, that party is relieved of that obligation when the other party instructs the party to keep the materials where the materials are. Such conduct by a receiving party amounts to a waiver of the tendering party's contractual obligation to perform. Rives E. Worrell Co. v. Key Sys., 147 Ga. App. 383, 248 S.E.2d 686 (1978).

- When contract provides that there must be tender of money or performance of some obligation, party bound to make tender or perform obligation may be relieved, and tender and obligation held to have been waived, where other party to contract repudiates the tender, by act or word, or takes position which would render tender or performance of obligation imposed useless or impossible. Rives E. Worrell Co. v. Key Sys., 147 Ga. App. 383, 248 S.E.2d 686 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Tender, § 6 et seq.

- 17A C.J.S., Contracts, §§ 452, 480 et seq., 630.

- Tender as affected by insufficiency of amount offered, 5 A.L.R. 1226.

Necessity of keeping tender good in equity, 12 A.L.R. 938.

Meaning of "by" as fixing time for performance of an act or happening of an event, 21 A.L.R. 1543.

Right of purchaser to opportunity to pay in cash where tender has been made in other medium, 23 A.L.R. 630; 46 A.L.R. 914.

When instrument deemed payable at a "special place" within the provision of the Uniform Negotiable Instruments Law making ability and willingness to pay at such place equivalent to tender, 24 A.L.R. 1050.

Payment or tender of unpaid purchase money as condition precedent to the right of a purchaser of land to rescind on the ground of defects in or want of title, 40 A.L.R. 693.

Tender by check, 51 A.L.R. 393.

Necessity that tender required as condition of enforcement of right or remedy under contract for sale of real property be made to an assignee of the other party, 88 A.L.R. 196.

Creditor's failure to disclose correct amount due as affecting sufficiency of debtor's tender of amount which debtor believes to be due, but which is less than amount actually due, 82 A.L.R.3d 1178.

Right of judgment creditor to demand that debtor's tender of payment be in cash or by certified check rather than by uncertified check, 82 A.L.R.3d 1199.