Avery v. Aladdin Products Division, Nat. Service Industries, Inc.
| Citation | 196 S.E.2d 357,128 Ga.App. 266 |
| Decision Date | 22 February 1973 |
| Docket Number | No. 47746,No. 3,47746,3 |
| Parties | , 12 UCC Rep.Serv. 628 Thomas AVERY v. ALADDIN PRODUCTS DIVISION, NATIONAL SERVICE INDUSTRIES, INC |
| Court | Georgia Court of Appeals |
Frank G. Wilson, Macon, for appellant.
Adams, O'Neal & Hemingway, Jerome L. Kaplan, Thomas W. Talbot, Macon, for appellee. Syllabus Opinion by the Court
The contract for the purchase of certain machinery recited that the machine 'has been examined by Purchaser, and is accepted in its present condition.', and that '(n)o representations or warranties, of any sort, express or implied, except warranty of title, have been made by Seller unless specifically set forth in writing in this contract,' (There were no warranties set forth elsewhere in the contract) and also, An action was brought on the contract by the Seller seeking recovery of the balance of the purchase price. The purchaser in defense, thereto, sought to set up a failure of consideration based upon oral statements of the seller that the machine was in 'good condition' and the further defense that the contract was unconscionable under Code § 109A-2-302, which defenses were disallowed by the trial judge and the verdict and judgment were rendered in favor of the plaintiff. Defendant's motion for new trial claiming error in these matters was overruled and the defendant appealed. Held:
1. The provisions of the contract met the requirements of Code § 109A-2-316(3)(a) and no implied warranty arose out of the transaction, either as to merchantability under paragraph (2) of that section, which is expressly subject to paragraph (3), or as to fitness for a particular purpose under Code § 109A-2-315, which latter section is also subject to the exclusions and modifications permissible under Code § 109A-2-316. Therefore, evidence of a contradictory prior or contemporaneous parole agreement is prohibited by Code § 109A-2-202.
2. The provisions of the contract contended by appellant to be unconscionable under Code § 109A-2-302 are provisions which the law itself specifically permits. This contention is without merit.
3. There was no error in overruling the motion for new trial.
Judgment affirmed.
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...Ga. App. 703, 704, 524 S.E.2d 730 (1999). A contract is not unconscionable if permitted by statute. Avery v. Aladdin Products Div. &c. , 128 Ga. App. 266, 267 (2), 196 S.E.2d 357 (1973). See William J. Cooney, P.C. , 240 Ga. App. at 704, 524 S.E.2d 730 ("That which the law itself specifical......
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Holman Motor Co. v. Evans
...was invalid because unconscionable under OCGA § 11-2-302 (Code Ann. § 109A-2-302) is without merit. Avery v. Aladdin Products &c. Indus., 128 Ga.App. 266, 267(2), 196 S.E.2d 357 (1973). c. Finally, Holman contends that the trial court erred in denying its motion for summary judgment as to a......
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NEC Technologies, Inc. v. Nelson
...consequential property damages. What the Legislature allows cannot be contrary to public policy. Avery v. Aladdin Products Div., etc., Inc., 128 Ga.App. 266(2), 196 S.E.2d 357 (1973). OCGA § 11-2-302(1) directs the trial court to determine as a matter of law whether a contract or any clause......
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Mitchell v. Ford Motor Credit Co.
...which the law itself specifically permits cannot be `unconscionable.'" Zepp at 78, 348 S.E.2d 673. See also Avery v. Aladdin Prods., 128 Ga.App. 266, 196 S.E.2d 357 (1973). Because it is unnecessary for this decision, the Court does not address whether the CLA preempts claims of unconsciona......