In Mаrch of 1981, the Decatur North Professional Building (Building) was owned by The Equitable Life Assurance Society of the United States (Equitable). In its capacity as the owner of the Building, Equitable entered into а contract with appellee-defendant Builders Glass, Inc. Under the contract, appellee was to recaulk the exterior of the Building for an agreed upon price. The contract also contained the specification that “[a]ll work done by [appellee] will hold a 10 year guarantee.” Appellee completed the wоrk and was paid the contract price.
In July of 1982, Equitable sold the Building to appellant-plaintiff Decatur North Associates, Ltd. After taking possession of the Building, appellant discovered leakage problems therein which it attributed to appellee’s deficient recaulking job. In April of 1983, appellant and Equitable then entered into a written agreement whеreby Equitable “transfer[red] and assign [ed] to [appellant] ... all the right, title *863 and interest of [Equitable] in and to [appellee’s March 1981 recaulking] Agreement. . . , together with any choses in aсtion arising out of or resulting from said agreement.” In June of 1983, appellant initiated the instant action against appellee. Insofar as it is relevant to the instant appeal, appellant sought, as Equitable’s assignee, to recover damages for breach of express warranty in that appellee had allegedly failed and refused “to cure said defects [in the Building] within a reasonable time. . . .” Appellee answered, denying the material allegations of the complaint and raising numerous defenses. Appellee subsequently moved for summary judgment, basing its motion upon the lack of any contractual privity between itself and appellant. The trial court, after conducting a hearing, granted summary judgment in favor оf appellee. It is from that order that appellant brings the instant appeal.
1. As a general rule, the existence of “privity” is required as between the parties in ex contractu actions and in ex delicto actions which arise out of a contract. See generally OCGA §§ 9-2-20 (a); 51-1-11 (a). “Privity of contract” is narrowly defined as “[t]hat connection or relationship which exists between two or more contracting parties.” Black’s Law Dictionary, 5th ed. (1979). However, there are some recognized exceptions to the requirement that the parties in an action based upon an underlying contract be those same parties who actually contracted. See generally OCGA §§ 51-1-11 (b) (products liability) and 9-2-20 (b) (third-party beneficiary), neither of which, however, is applicable under the evidence of record in the instant case. Compare
Buchanan v. Ga. Boy Pest Control,
In granting summary judgment in favor of appellee on its lack of privity defense, the trial court relied upon
Stewart v. Gainesville Glass Co.,
The
Stewart
and the
Tolar Constr. Co.
cases are, however, factually distinguishable from the instant case. The subject of the instant underlying transaction was appellee’s services and the express warranty at issue involvеs the performance of those services, not a warranty of appellee’s goods made in connection with a sale thereof. See
Dixie Lime &c. Co. v. Wiggins Scale Co.,
*865
2. “[W]hile contraсt rights and duties are generally assignable and delegable ([OCGA § 44-12-22]), duties may not be delegated where performance by the delegate would materially vary from the performancе required by the original obligor. [Cit.]”
Dennard, v. Freeport Minerals Co.,
After paying appellee for the completed recaulking work, Equitable had no remaining obligations under the contract. The only contractual liability remaining was that assumed by appellee by virtue of its express warranty of its completed work. Thus, Equitable had the contractual right to enforce appellee’s liability, which right was not coupled with any further liability on its part to appellee. Therefore, when Equitable assigned this right to appellant, appellant did not thereby assume any obligation of performance as to appellee. Likewise, there is nothing to show that the underlying contract involved personal confidences, such that appellee necessarily intended that the remaining right to enforce its warranty thereunder be exercised only by the Equitable. Compare Mingledorff’s, Inc. v. Hicks, supra. The evidence shows only that appellee contracted with Equitable as the owner of the Building and there is no evidence that appellee would not have given the ten-year warrаnty on its “work” to anyone else who may have happened to own the Building and who wished to contract with appellee for recaulking.
Since it was only appellee who owed any further potential duty under the contract and since no personal confidences were involved in connection with the countervailing contractual right to enfоrce that duty, the instant case would come within the general rule of assignability of contract rights. It follows that there would be no legal impediment to the written assignment by Equitable of its existing rights under the contract without the prior consent of appellee. Accordingly, the trial court erred in granting summary judgment in favor of appellee on its lack of privity defense. Construing the evidence most favor *866 ably for appellant, it has the right as the assignee of the contract to enforce appellee’s ten-year covenant as to the sufficiency of the performance of its contractual obligations.
Judgment reversed.