dissenting.
I agree with the statement of facts and the ruling in Division 1 of the opinion, but I cannot agree with the conclusions reached in Division 2 of the opinion. Let us examine some of the provisions of the Retail Instalment and Home Solicitation Sales Act. Section 13 of the Retail Instalment and Home Solicitation Sales Act (Ga. L. 1937, p. 659, 673; Code Ann. § 96-913) provides: "Any waiver of the provisions of this Act shall be unenforceable and void.” (Emphasis supplied.) Section 3, subsection (a) of the Act provides: "Every retail installment contract shall be in writing and shall be completed as to all essential provisions prior to the signing thereof by the buyer . . .” This Section further provides in various subsections therein just what is required by the Act to be in the contract and what certain things must be done, with detailed instructions; and in Subsection g thereof provides: "The seller under any retail installment contract shall, within 30 days after execution of the contract, deliver or mail or cause to be delivered or mailed to the buyer at his aforesaid address, any policy or policies of insurance the seller has agreed to purchase in connection therewith, or in lieu thereof a certificate or certificates of such insurance.. . Nothing in this Chapter shall impair or abrogate the right of a buyer to procure insurance from an agent and company of his own selection,” and "the term 'holder’ as used in this Chapter means the retail seller, unless the seller has assigned the contract, in which case 'holder’ means the assignee of such contract at the time of the determination.” This Section of the Act is codified in the Annotated Code as § 96-903.
The question here is whether the act of the defendant in taking delivery of the goods prior to the insurance becoming effective, with knowledge that said insurance was not effective and assuming the risk of loss and depending upon his family policy to cover any loss, *272amount to a waiver of any provision of this Act.
(a) The contract in the present case contained no recitation or statement that the insurance would become effective immediately, nor is there any requirement in the Act that such be the case or that such a statement be therein, nor does the Act require that any statement as to the effective date of the insurance be stated in the contract. The trial judge, in his order, apparently misconstrued the contract as having provided therein for instant insurance. So does the majority here, although this is contrary to the statement of facts that the contract did not provide for an effective date for the insurance, however, in the absence of any requirement or provision in the Act, requiring such a statement to be in the contract, no waiver of such provision of the contract, even if such a waiver occurred is a waiver of the provisions of the Act as shown above. Section 13 of the Act only proscribes a waiver of the provisions of the Act; it has nothing to do with a waiver of the provisions of the contract as drawn. As to waiver of the provisions of sales contracts generally, see Code § 109A-2 — 209 (4), a provision of the UCC.
The majority here and the trial judge relied upon Geiger Finance Co. v. Graham, 123 Ga. App. 771 (182 SE2d 521) as authority that this provision of the sales sections of the Georgia Commercial Code has no application to a contract under the Retail Instalment and Home Solicitation Sales Act. There is no ruling in that case holding that the Act here governs various legal incidents of a contract of sale not specifically or impliedly covered therein. I agree that the present contract is governed by the provisions of the Act, but when there is no provision of the Act covering the situation, then the general law outside the Act must be applied. In the Geiger Finance case, this court held that the contract there involved was not a negotiable instrument within the definition of Code § 109A-3 — 104 (1), and in referring to the contract, said in the opinion: "It contains a purported waiver by the buyer of 'any defense, counterclaim or cross-complaint’ he could have asserted against the seller. This goes further than reiterating the rights of the holder in due course since 'any defense’ would also presumably include infancy, incompetence, discharge in bankruptcy, *273etc. This is not the type of waiver contemplated by Code Ann. § 109A-3 — 112. Rather, it is an attempt to impart the effect of negotiability to a writing which cannot otherwise meet the test of an Article 3 negotiable instrument.” The Code Section there referred to was not Section 109A-2 — 209 (4), but was 109A-3 — 112, which provides: "The negotiability of an instrument is not affected by... (e) a term purporting to waive the benefit of any law intended for the advantage or protection of the obligor.” There was no ruling in that case that can possibly be held as ruling that the provisions of the UCC relating to sales can have no application to contracts under the Retail Instalment and Home Solicitation Sales Act, and which sections contain nothing but legal incidents arising from a sale not controlled by any provision of that Act.
(b) Appellee insists, however, that because Section 3 of the Act (Code Ann. § 96-903) provides: "Every retail instalment contract shall be in writing and shall be completed as to all essential provisions prior to the signing thereof by the buyer” (with certain exceptions which are not here material) that the entering into the agreement relating to the immediate delivery of the goods and the assumption of risk by the buyer amounted to a waiver of the requirement of the Act that the instalment contract shall be in writing. I do not agree. In my opinion, all essential provisions of the contract were included and completed. And even the majority held the contract as written provided the insurance was to become effective upon delivery of the goods. What more could the contract have contained in reference thereto? However, even if it did not so provide (and it did not) the requirement that the contract be in writing is not a requirement that all legal incidents to a contract and actions taken thereunder, also be included in the writing. To so hold would require all the definitions given in the Act to be included in the contract, would require all legal incidents to the delivery and receipt of the goods under the contract and other legal incidents as well. We do not conclude that such was the intention of the legislature. What occurred here was no attempted waiver of the provision of the Act requiring the contract to be in writing, but merely the acceptance and *274delivery under the contract of the goods specified thereto with knowledge the insurance which the buyer authorized the seller to procure had not at that time been procured, and the jury found as a fact that this occurred.
(c) What then is the legal result of this delivery and acceptance, as found by the jury? The Act contains no answer. To answer this question we go to the Commercial Code, which, in my opinion, controls at this point. Where the Retail Instalment and Home Sales Solicitation Act leaves off, the provisions of the Commercial Code on Sales begin. Code § 109A-2 — 303 provides: "Where this article allocates a risk or a burden as between the parties 'unless otherwise agreed,’ the agreement may not only shift the allocation but may also divide the risk or burden.”
The contract in the present case being silent on this question, we must look elsewhere to determine where the risk of loss lay, whether on the seller or the buyer, under the facts here. Subsection 3 of the Code § 109A-2 — 509 provides: "In any case not within subsection (1) or (2), the risk of loss passes to the buyer on his receipt of goods if the seller is a merchant; otherwise, the risk passes to the buyer on tender of delivery.” Subsections (1) and (2) are not applicable here. It follows, therefore, that even in the absence of what is termed a "waiver” by the jury verdict and by the trial judge, and by the parties, the result would have been the same under the law. Accordingly, we should hold that the trial court erred in granting the motion for a judgment notwithstanding the verdict in favor of the defendant-buyer.
In my opinion, the majority have converted a prohibition against "waiver” of a provision of an Act into a prohibition against a waiver of a provision of a contract; which contract was required to be in writing by the Act, but which waived provision was not required to be in the contract by the Act, although it was therein and it was in writing.
The cases relied on by the majority are cases where the buyer thought he was insured, and was not. Here, according to the jury verdict, the buyer took delivery of the goods, not only knowing he was not insured, but expressly assumed the risk of loss. And the attempt to apply equity rules in favor of the buyer who got possession *275of the property by assuming the risk of loss, is inappropriate. If anything, they should be applied in favor of the seller.
I would reverse.