Indeed, the Georgia Supreme Court has recognized that the restoration contemplated by the predecessor of this statute is equitable in nature. Jones v. Gaskins , 248 Ga. 510, 512, 284 S.E.2d 398 (1981). See also Lanier Home Center v. Underwood , 252 Ga.App. 745, 746, 557 S.E.2d 76 (2001) (“Georgia law allows equitable rescission for nonperformance of a contract: ‘A party may rescind a contract without the consent of the opposite party on the ground of nonperformance by that party but only when both parties can be restored to the condition in which they were before the contract was made.’
But to justify rescission, there must be a "material nonperformance or breach" by the opposing party. See Jones v. Gaskins, 248 Ga. 510, 511-512 (1) ( 284 SE2d 398) (1981); see also OCGA § 13-4-62. If the breach is not material, the party is limited to a claim for damages and cannot rescind the contract. See Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) ( 557 SE2d 76) (2001).
One who seeks rescission of a contract for fraud must restore or offer to restore the consideration received thereunder, as a condition precedent to bringing the action (see Condios, Inc. v. Driver, 145 Ga. App. 537 ( 244 S.E.2d 85)); however, restoration by the purchaser is not an absolute rule, and does not require that the defrauding party be placed in exact status quo, but only that he be placed substantially in his original position and that the party rescinding derives no unconscionable advantage from the rescission. Fletcher v. Fletcher, 158 Ga. 899 ( 124 S.E. 722); National Old Line Ins. Co. v. Lane, 172 Ga. App. 519, 522 ( 323 S.E.2d 707); accord Jones v. Gaskins, 248 Ga. 510, 512 ( 284 S.E.2d 398); Henderson WarehouseCo. v. Brand, 105 Ga. 217, 224 ( 31 S.E. 551); Rountree v. Davis, 90 Ga. App. 223 ( 82 S.E.2d 716); see Cobb Eldridge, Ga. Law of Damages (2nd ed.), § 17-4. One seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible ( Mutual Savings c. Ins. Co. v. Hines, 96 Ga. App. 442 ( 100 S.E.2d 466)), or when to do so would be unreasonable.
OCGA § 13-4-62. See Jones v. Gaskins, 248 Ga. 510, 512 (1) ( 284 S.E.2d 398) (1981); Henderson Elevator Co. v. N. Ga. Milling Co., 126 Ga. 279, 282 (3) ( 55 S.E. 50) (1905); Milan v. Gray, 80 Ga. App. 356 (3) ( 56 S.E.2d 168) (1949). During that time Falco made only two payments on the lease.
Fletcher v. Fletcher, 158 Ga. 899, 900 (4) ( 124 S.E. 722) (1923). Accord Henderson Warehouse Co. v. Brand, 105 Ga. 217, 224 ( 31 S.E. 551) (1898); Jones v. Gaskins, 248 Ga. 510, 512 ( 284 S.E.2d 398) (1981). See generally OCGA § 13-4-62.
To justify rescission, there must be "material nonperformance or breach," meaning that the breach was "so substantial and fundamental as to defeat the object of the contract." Jones v. Gaskins, 284 S.E.2d 398, 400 (Ga. 1981); Lanier Home Center, Inc. v. Underwood, 557 S.E.2d 76, 79 (Ga. Ct. App. 2001); see also OCGA § 13-4-62. In other words, "to trigger the right to rescission, the act failed to be performed must go to the root of the contract."
Sherrer v. Hale, 248 Ga. 793, 797-798 (2) ( 285 S.E.2d 714) (1982). See Jones v. Gaskins, 248 Ga. 510, 511-512 (1) ( 284 S.E.2d 348) (1981).Milam v. Gray, 80 Ga. App. 356, 358 ( 56 S.E.2d 168) (1949).