Ainsworth v. Perreault, 254 Ga.App. 470, 471(1), 563 S.E.2d 135 (2002) (citations omitted).Meadow River Lumber Co. v. Univ. of Ga. Research Foundation, 233 Ga.App. 169, 175(2), 503 S.E.2d 655 (1998) (citation and punctuation omitted).Wender & Roberts, Inc. v. Wender, 238 Ga.App. 355, 360(5), 518 S.E.2d 154 (1999).
(Punctuation and footnote omitted). Meadow River Lumber Co. v. Univ. of Ga. Research Foundation, 233 Ga.App. 169, 173(1), 503 S.E.2d 655 (1998). Thus, although Avery alleges fraudulent inducement to enter into the agreement, given her affirmance and the agreement's express merger clause, there is no reliance absent a showing that Avery lacked knowledge of the contents of the agreement and, since the alleged representations were not stated in the agreement itself, the merger clause precludes a claim of fraud.
However, assuming a rescission claim was before the trial court, the trial court was not required to recognize a rescission because the defendants, through PCK, sold the business while claiming title, among other actions inconsistent with a repudiation of the sales contract. See, e.g., Meadow River Lumber Co. v. Univ. of Ga. Research Foundation, 233 Ga. App. 169, 176 (2) ( 503 SE2d 655) (1998) ("[w]here a party who is entitled to rescind a contract on ground of fraud or false representations . . . acts in a manner inconsistent with a repudiation of the contract, such conduct amounts to acquiescence") (punctuation and footnote omitted). 5. The defendants contend that the trial court erred in granting judgment to the plaintiffs after finding that they had unclean hands.
Lakeside Investments Group v. Allen, 253 Ga. App. 448, 451(2)(a) ( 559 S.E.2d 491) (2002). See Meadow River Lumber Co. v. University of Ga. Research Foundation, 233 Ga. App. 169, 173 n. 16 ( 503 S.E.2d 655) (1998). A merger or entire-agreement clause provides in essence that the parties' written contract contains the entire agreement between the parties and that all prior oral agreements or promises are merged into the written agreement.
An announcement of the intent to rescind the contract must be made in a timely fashion, as soon as the facts supporting the claim for rescission are discovered. Moreover, the aggrieved party must adhere to the intent to rescind and may waive any claim for rescission by failing to do so. Fla. Intl. Indem. Co. v. Osgood, 233 Ga. App. 111, 113 ( 503 S.E.2d 371) (1998); Meadow River Lumber Co. v. Univ. of Ga. Research c., 233 Ga. App. 169, 176(2) ( 503 S.E.2d 655) (1998). Once a claim for rescission is waived, it may not be revived:
The rescinding party must derive no unconscionable advantage from the rescission. Meadow River Lumber Co. v. University of Ga. c., 233 Ga. App. 169, 174-175(2) ( 503 S.E.2d 655) (1998); Intl. Software c. v. Atlanta Pressure c. Co., 194 Ga. App. 441, 441-442 ( 390 S.E.2d 659) (1990); OCGA ยง 13-4-60. The president and the company have made no showing that they offered to restore to Wender the benefits they have received under the contract.
Vega, 564 F.3d at 1274; see also Elizabethtown, 95 F.R.D. at 178 (explaining that the determination of whether class members acquiesced in defendant's allegedly illegal pricing scheme raised individualized questions of liability that defeated predominance). Concerning the defense of ratification, see, for example, Meadow River Lumber Co. v. Univ. of Ga. Research Found., Inc., 233 Ga. App. 169, 503 S.E.2d 655, 661-62 (1998); Frazier v. Harper, 600 So.2d 59, 62 (La. 1992); Valley Fid. Bank Trust Co. v. Cain P'ship, Ltd., 738 S.W.2d 638, 639-40 (Tenn.Ct.App. 1987); Dusenberry v. First Nat'l Bank of Birmingham, 271 Ala. 207, 122 So.2d 716, 721-22 (1959); Toffel v. Baugher, 111 So.2d 290, 291 (Fla.Dist.Ct.App. 1959); and Wood Naval Stores Export Ass'n v. Latimer, 220 Miss. 652, 71 So.2d 425, 430 (1954). With respect to waiver, see, for example, Retail Developers of Ala., LLC v. E. Gadsden Golf Club, Inc., 985 So.2d 924, 930 (Ala. 2007); Arbogast v. Bryan, 393 So.2d 606, 608-09 (Fla.Dist.Ct.App. 1981); Ga. Farm Bureau Mut. Ins. Co. v. Bishop, 219 Ga.App. 42, 464 S.E.2d 9, 11 (1995); Rogers v. Horseshoe Entm't, 766 So.2d 595, 602 (La.Ct.App. 2000); Canizaro v. Mobile Commc'ns Corp. of Am., 655 So.2d 25, 29 (1995); and Gold Kist, Inc. v. Pillow, 582 S.W.2d 77, 79-80 (Tenn.Ct.App. 1979).
Notwithstanding, the rescinding party must derive no unconscionable benefit from rescinding. Meadow River Lumber Co. v. Univ. of Ga. Research Found. Inc., 503 S.E.2d 655, 661 (1998). Plaintiffs argued that tendering the consideration under the Separation Agreement would be unreasonable because the consideration retained by Ben Hagler, Sr. were his one-third shares in HSI, which if returned, would automatically restore him as a director of HSI. (Pls.' Suppl.
In order for a contract to be rescinded in Georgia, "the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value." O.C.G.A. ยง 13-4-60; see also Meadow River Lumber Co. v. University of Ga. Research Found., Inc., 233 Ga. App. 169, 175 (1998). Here, because the contract contained a valid merger clause, 174 West Street was required to rescind promptly the agreement and return any benefits received.