16.100 Contracts; Temporary Departure; Generally

16.100 Contracts; Temporary Departure; Generally When parties in the performance of a contract depart from its terms and pay or receive money under such departure before either party can recover for failure to carry out the exact terms of the agreement, reasonable notice must be given to the other party of intention to rely on the exact terms of the agreement. The original contract will be suspended by the departure until such notice. In order for this rule to have application, it is necessary that the circumstances be such as will in law imply a mutual new agreement whereby new, distinct, and definite terms are supplied in lieu of those provided for by the original contract. The departure from the terms of the contract must have been substantial and such as to make it inequitable for the creditor to demand without repeated, late, irregular payments, which were accepted by the person to whom payment was due, is a factor for your consideration in determining whether a new mutual agreement is to be implied. O.C.G.A. §13-4-4 Ball v. Foundation Co., 25 Ga. App. 126(1) (1920) Ford v. Prudential Investment Co., 174 Ga. 163 (1932) Kennesaw Guano Co. v. Miles & Co., 132 Ga. 763 (1909) MacGuire v. Ivey, 212 Ga. 151, 154 (1956) Commercial Trust Co. Inc. v. Mathis, 100 Ga. App. 620, 622 (1959) Smith v. General Finance Corp., 243 Ga. 500, 501 (1979) Wright Carriage Co. v. The Business Development Corp. of Georgia, 221 Ga. App. 49 (1996) (See O.C.G.A. §11-2-209 for retraction of waiver or modification of contract terms.)