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April 1, 2012
Jury instructions for contracts and business cases

The Supreme Court Committee on Standard Jury Instructions — Contract and Business Cases invites all interested persons to comment on the proposed new instructions below. Comments must be received by the Committee on or before May 1, 2012. All comments received will be reviewed by the Committee. Revisions to the proposed instructions may be made based upon comments received. Upon final approval of the instructions, the Committee will make a recommendation to the Florida Supreme Court. E-mail your comments in the format of a Word document to Judge Jonathan D. Gerber, Committee Chair, at gerberj@flcourts.org, with a copy to the Committee liaison, Jodi Jennings, at jjenning@flabar.org.


306 CONTRACT IMPLIED IN LAW

(Claimant) claims that (defendant) owes [him] [her] [it] money for (insert brief summary of allegations). To establish this claim, (claimant) must prove all of the following:

1. (Claimant) gave a benefit to (defendant);

2. (Defendant) knew of the benefit;

3. (Defendant) accepted or retained the benefit; and

4. The circumstances are such that (defendant) should, in all fairness, be required to pay for the benefit.
NOTES ON USE

1. “To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms – quasi contract, unjust enrichment, restitution, constructive contract, and quantum meruit.” Commerce Partnership 8098 Limited Partnership v. Equity Contracting Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (internal quotations and footnotes omitted). However, a contract implied in law “is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties' expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.” Id. “The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other.” Id.

2. The committee has drafted this instruction because a claim to establish a contract implied in law may be a claim in equity for the court to decide or a claim at law for a jury to decide. See Della Ratta v. Della Ratta, 927 So.2d 1055, 1060 n.2 (Fla. 4th DCA 2006) (“In Florida, all implied contract actions, including unjust enrichment, were part of the action of assumpsit, which was an action at law under the common law. Although some Florida courts have described quasi contracts as being ‘equitable in nature,’ the term has been used in the sense of ‘fairness,’ to describe that quality which makes an enrichment unjust, and not as a reference to the equity side of the court.”) (internal citations omitted).

312 SUBSTANTIAL PERFORMANCE

(Defendant) claims that (claimant) did not perform all of the essential things which the contract required, and therefore (defendant) did not have to perform [his] [her] [its] obligations under the contract. To defeat this claim, (claimant) must prove both of the following:
    1. (Claimant) performed in good faith; and
    2. (Claimant’s) performance was so nearly equivalent to what was bargained for that it would be unreasonable to deny [him] [her] [it] the full contract price less an appropriate reduction, if any, for (claimant’s) failure to fully perform.
    SOURCES AND AUTHORITIES

    “Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the promisee the full contract price subject to the promisor’s right to recover whatever damages may have been occasioned him by the promisee’s failure to render full performance.” Ocean Ridge Dev. Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971).
    NOTES ON USE
      1. “There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay. Payment is either made in the amount and on the date due, or it is not.” Enriquillo Export & Import, Inc. v. M.B.R. Indus., Inc., 733 So.2d 1124, 1127 (Fla. 4th DCA 1999).

      2. The measure of any reduction referred to in element 2 should be addressed in the damages instructions.
      324 Anticipatory Breach

      (Claimant) claims that (defendant) anticipatorily breached the contract between the parties.

      To establish this claim, (claimant) must prove both of the following:

      1. (Defendant) breached the contract by clearly and positively indicating, by words or conduct, or both, that [he] [she] [it] would not or could not perform the contract; and

      2. (Claimant) was willing and able to perform the contract at the time (defendant) breached the contract.
      SOURCES AND AUTHORITIES

      1. “Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.” Hosp. Mortgage Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182 (Fla. 1982) (quoting Restatement (Second) of Contracts s. 253 (1979)).

      2. “Repudiation may be evidenced by words or voluntary acts but the refusal must be distinct, unequivocal, and absolute.” Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463 (Fla. 3d DCA 1980).

      3. “[T]he non-breaching party is required to plead and prove compliance with all conditions precedent or the ability to comply if the performance has been excused by the repudiation.” Hosp. Mortgage Grp., 411 So.2d at 183. But see Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1096 (Fla. 2011) (“[A] defending party’s assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion.”); Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”).

      330 AFFIRMATIVE DEFENSE – MUTUAL MISTAKE OF FACT

      (Defendant) claims that [he] [she] [it] should be able to set aside the contract because the parties were mistaken about (insert description of mistake). To establish this defense, (defendant) must prove the following:

      1. The parties were mistaken about (insert description of mistake); and

      2. (Defendant) did not bear the risk of mistake. A party bears the risk of a mistake when

      [the parties’ agreement assigned the risk to [him] [her] [it]]*
      [or]
      [[he] [she] [it] was aware, at the time the contract was made, that [he] [she] [it] had only limited knowledge about the facts relating to the mistake but decided to proceed with the contract].**
        * The court should give the first option only if the court finds that the contract is ambiguous regarding whether the contract assigns the risk to the defendant.
        **The court should give the second option only if there is competent, substantial evidence that, at the time the contract was made, the defendant had only limited knowledge with respect to the facts relating to the mistake but treated the limited knowledge as sufficient.
      NOTES ON USE

      1. The court should not give this instruction if it determines that the alleged mistake was not material.

      2. The court should not give this instruction if it finds that the contract unambiguously assigns the risk to the defendant or if the court assigns the risk of mistake to the defendant on the ground that it is reasonable under the circumstances to do so.
      SOURCES AND AUTHORITIES

      1. “A party may avoid a contract by proving mutual mistake regarding a basic assumption underlying the contract. However,to prevail on this basis the party must also show he did not bear the risk of mistake.” Leff v. Ecker, 972 So.2d 965, 966 (Fla. 3d DCA 2008) (citation omitted).

      2. “A party bears the risk of a mistake when (a) the risk is allocated to him by agreement of the parties or (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.” Rawson v. UMLIC VP, L.L.C., 933 So.2d 1206, 1210 (Fla. 1st DCA 2006) (quoting Restatement (Second) of Contracts s. 154 (1979)).
      331 AFFIRMATIVE DEFENSE – UNILATERAL MISTAKE OF FACT

      (Defendant) claims that [he] [she] [it] should be able to set aside the contract because [he] [she] [it] was mistaken about (insert description of mistake). To establish this defense, (defendant) must prove all of the following:

      1. (Defendant) was mistaken about (insert description of mistake) at the time the parties made the contract;
        2. [The effect of the mistake is such that enforcement of the contract would be unconscionable]
            [or]
        [(Claimant) had reason to know of the mistake or [he] [she] [it] caused the mistake.]

        and

        3. (Defendant) did not bear the risk of mistake. A party bears the risk of a mistake when
          [the parties’ agreement assigned the risk to [him] [her] [it]]*
          [or]
          [[he] [she] [it] was aware, at the time the contract was made, that [he] [she] [it] had only limited knowledge about the facts relating to the mistake but decided to proceed with the contract].**
          * The court should give the first option only if the court finds that the contract is ambiguous regarding whether the contract assigns the risk to the defendant.
          **The court should give the second option only if there is competent, substantial evidence that, at the time the contract was made, the defendant had only limited knowledge with respect to the facts relating to the mistake but treated the limited knowledge as sufficient.
        NOTES ON USE

        1. The court should not give this instruction if it determines that the alleged mistake was not material.

        2. The court should not give this instruction if it finds that the contract unambiguously assigns the risk to the defendant or if the court assigns the risk of mistake to the defendant on the ground that it is reasonable under the circumstances to do so.
          SOURCES AND AUTHORITIES

          1. A contract may be “set aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionable.” BMW of N. Am. v. Krathen, 471 So.2d 585, 588 (Fla. 4th DCA 1985) (citing Maryland Cas. Co. v. Krasnek, 174 So.2d 541 (Fla. 1965); Orkin Exterminating Co. v. Palm Beach Hotel Condo. Ass’n, Inc., 454 So.2d 697 (Fla. 4th DCA 1984); Pennsylvania Nat’l Mutual Cas. Ins. Co., v. Anderson, 445 So.2d 612 (Fla. 3d DCA 1984)).
              2. Sections 153 and 154 of the Restatement (Second) of Contracts (1979) provide:
              § 153. When Mistake of One Party Makes a Contract Voidable.

              Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in § 154, and
              (a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or
              (b) the other party had reason to know of the mistake or his fault caused the mistake.

              § 154. When a Party Bears the Risk of a Mistake.

              A party bears the risk of a mistake when
              (a) the risk is allocated to him by agreement of the parties, or
              (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
              (c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
            334 AFFIRMATIVE DEFENSE – UNDUE INFLUENCE

            (Defendant) claims that [he] [she] [it] should be able to set aside the contract because (claimant) unfairly pressured [him] [her] [it] into agreeing to the contract. To establish this defense, (defendant) must prove both of the following:

            1. (Claimant) used [a relationship of trust and confidence] [or] [(defendant)’s weakness of mind] [or] [(defendant)’s needs or distress] to control, persuade, or pressure (defendant) into agreeing to the contract; and

            2. (Defendant) would not otherwise have voluntarily agreed to the contract.
            SOURCES AND AUTHORITIES

            1. “Undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and willpower.” Jordan v. Noll, 423 So.2d 368, 370 (Fla. 1st DCA 1982).
              2. “[M]ere weakness of mind, unaccompanied by any other inequitable incident, if the person has sufficient intelligence to understand the nature of the transaction and is left to act upon his own free will, is not a sufficient ground to set aside an agreement.” Donnelly v. Mann, 68 So.2d 584, 586 (Fla. 1953) (citations omitted).
                3. “To constitute ‘undue influence’ the mind . . . must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but . . . subject to the will or purposes of another.” Peacock v. Du Bois, 105 So. 321, 322 (Fla. 1925) (citation omitted).
                338 AFFIRMATIVE DEFENSE – STATUTE OF LIMITATIONS

                On the defense of statute of limitations, the issue for you to decide is whether (claimant) filed [his] [her] [its] claim (describe claim as to which statute of limitations defense has been raised) within the time set by law.

                To establish this defense, (defendant) must prove that any breach of contract, if one in fact occurred, occurred before (insert date four or five years before date of filing suit).
                SOURCES AND AUTHORITIES

                1. Section 95.11(2)(b), Florida Statutes (2011), provides that “[a] legal or equitable action on a contract, obligation or liability founded on a written instrument [other than for the recovery of real property], except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of ss. 255.05(1) and 713.23(1)(e)” shall be commenced within five years. (emphasis added).

                2. Section 95.11(3)(k), Florida Statutes (2011), provides that “[a] legal or equitable action on a contract, obligation or liability not founded on a written instrument [other than for the recovery of real property], including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts” shall be commenced within four years. (emphasis added).

                3. In a breach of contract action, “it is well established that a statute of limitations runs from the time of the breach,” BDI Const. Co. v. Hartford Fire Ins. Co., 995 So.2d 576, 578 (Fla. 3d DCA 2008), “not from the time when consequential damages result or become ascertained,” Medical Jet, S.A. v. Signature Flight Support–Palm Beach, Inc., 941 So.2d 576, 578 (Fla. 4th DCA 2006).
                NOTES ON USE

                The delayed discovery doctrine has not been applied to breach of contract actions in Florida. See Medical Jet, 941 So.2d at 578 (“The supreme court rejected an expansion of the delayed discovery doctrine in Davis v. Monahan, 832 So.2d 708 (Fla.2002).”).



                  339 AFFIRMATIVE DEFENSE – EQUITABLE ESTOPPEL

                  (Defendant) has raised the defense of equitable estoppel. To establish this defense, (defendant) must prove all of the following:
                    1. [(Claimant) took action by (describe material action)]
                    [(Claimant) spoke about (describe material fact)]
                    [(Claimant) concealed or was silent about (describe material fact) at a time when [he] [she] [it] knew of [that fact] [those facts]];

                  2. (Defendant) relied in good faith upon (claimant’s) [action] [words] [inaction] [silence]; and

                  3. (Defendant’s) reliance on (claimant’s) [action] [words] [inaction] [silence] caused (defendant) to change [his] [her] [its] position for the worse.
                  NOTES ON USE

                  The court should not give this instruction if it determines that the alleged action, words, inaction, or silence was not material.
                  SOURCES AND AUTHORITIES

                  1. “The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State v. Harris, 881 So.2d 1079, 1084 (Fla. 2004).
                    2. “[I]n order to work an estoppel, silence must be under such circumstances that there are both a specific opportunity and a real apparent duty to speak.” Thomas v. Dickinson, 30 So.2d 382, 384 (Fla. 1947).

                    3. “The ‘representation’ upon which an estoppel may be predicated may consist of words, conduct, or, if there is a duty to speak, silence.” Lloyds Underwriters at London v. Keystone Equipment Finance Corp., 25 So.3d 89, 93 (Fla. 4th DCA 2009) (citations omitted).


                    4. “The conduct . . . such as to create an estoppel . . . necessary to a waiver consists of willful or negligent words and admissions, or conduct, acts and acquiescence causing another to believe in a certain state of things by which such other person is or may be induced to act to his prejudice. The acts or conduct need not be positive, but can consist of failure to act or, more particularly, failure to speak when under some duty to speak.” Richards v. Dodge, 150 So.2d 477, 481 (Fla. 2d DCA 1963) (internal citations omitted).

                    340 AFFIRMATIVE DEFENSE – JUDICIAL ESTOPPEL

                    The committee has not drafted an instruction for the affirmative defense of judicial estoppel because judicial estoppel is an equitable doctrine which a court is to determine. See Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla. 2001) (“Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial, proceedings.” (citation omitted).
                    341 AFFIRMATIVE DEFENSE – RATIFICATION

                    (Defendant) has raised the defense of ratification. To establish this defense, (defendant) must prove all of the following:

                    1. (Defendant) performed [an act] [a transaction] that breached the contract;

                    2. (Claimant) knew of the [act] [transaction];

                    3. (Claimant) knew that [he] [she] [it] could reject the contract because of the [act] [transaction]; and

                    4. (Claimant) [accepted the [act] [transaction]] [expressed [his] [her] [its] intention to accept the [act] [transaction]].


                    SOURCES AND AUTHORITIES

                    1. “An agreement is deemed ratified where the principal has full knowledge of all material facts and circumstances relating to the unauthorized act or transaction at the time of the ratification. An affirmative showing of the principal’s intent to ratify the act in question is required.” Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012, 1022 (Fla. 2000) (citations omitted).

                    2. “[W]here a party seeking rescission has discovered grounds for rescinding an agreement and either remains silent when he should speak or in any manner recognizes the contract as binding upon him, ratifies or accepts the benefits thereof, he will be held to have waived his right to rescind.” AVVA-BC, LLC v. Amiel, 25 So.3d 7, 11 (Fla. 3d DCA 2009) (citation and internal quotations omitted).

                    342 AFFIRMATIVE DEFENSE – PROMISSORY ESTOPPEL

                    (Defendant) has raised the defense of “promissory estoppel.” To establish this defense, (defendant) must prove all of the following:

                    1. (Claimant) promised to (describe material act to be performed or not performed) in the future;
                      2. (Claimant) reasonably should have expected that (defendant) would rely upon the promise;

                      3. (Defendant) reasonably relied upon (claimant’s) promise;

                      4. (Claimant) did not keep [his] [her] [its] promise; and

                      5. (Defendant’s) reliance on (claimant’s) promise caused harm to (defendant).
                      SOURCES AND AUTHORITIES

                      1. “The basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts § 90 (1979), which states:

                        (1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

                        The character of the reliance protected is explained as follows:

                        The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness of the promisee’s reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.

                      W.R. Grace & Co. v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989).

                      2. Promissory estoppel is “a qualified form of equitable estoppel which applies to representations relating to a future act of the promisor rather than to an existing fact.” Crown Life Ins. Co. v. McBride, 517 So.2d 660, 661-62 (Fla. 1987). Promissory estoppel “only applies where to refuse to enforce a promise, even though not supported by consideration, would be virtually to sanction the perpetration of fraud or would result in other injustice. Such injustice may be found where the promisor reasonably should have expected that his affirmative representations would induce the promisee into action or forbearance substantial in nature, and where the promisee shows that such reliance thereon was to his detriment. Id. at 662.
                      353 DAMAGES FOR COMPLETE DESTRUCTION OF BUSINESS

                      If (claimant) proved that (defendant) completely destroyed (claimant’s) business, then you must award (claimant) damages based upon the market value of (claimant’s) business on the date (claimant’s) business was destroyed.
                      NOTES ON USE

                      1. The court should give this instruction when the claimant seeks damages for the complete destruction of a business. If a business has not been completely destroyed, then damages based upon the market value of the business are not appropriate, and the court should not give this instruction. Instead, the court should give instruction 352 regarding lost profits.
                        2. “Market value,” as used in this instruction, is not meant to suggest a particular approach to determining market value. See, e.g., Fidelity Warranty Servs., Inc. v. Firstate Ins., 74 So.3d 506, 514 n.5 (Fla. 4th DCA 2011) (discussing various approaches).
                        SOURCES AND AUTHORITIES

                        1. “If a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of the loss. If the business is not completely destroyed, then it may recover lost profits. A business may not recover both lost profits and the market value of the business.” Montage Grp., Ltd. v. Athle-Tech Computer Systems, Inc., 889 So.2d 180, 193 (Fla. 2d DCA 2004) (citations omitted).



                        2. “Courts in other jurisdictions have generally rejected the notion that ‘fair value’ is synonymous with ‘fair market value.’” Boettcher v. IMC Mortg. Co., 871 So.2d 1047, 1052 (Fla. 2d DCA 2004). “The rationale underlying this language is the recognition that the events that trigger the valuation process may either disrupt or preclude the market for the shares, if in fact such a market ever existed – as in the case of a closely held corporation.” Id. (citation omitted).

                        356 Buyer’s Damages for Breach of Contract
                        for Sale of Real Property

                        To recover damages for the breach of a contract to sell real property, (claimant) must prove that [he] [she] [it] was ready, willing, and able to perform the contract.

                        If (claimant) proves that [he] [she] [it] was ready, willing, and able to perform the contract, then (claimant) may recover:

                        1. The amount of any payment made by (claimant) toward the purchase price; and
                        2. The amount of any reasonable expenses for examining title.

                        If (claimant) also proves that (defendant) acted in bad faith in breaching the contract or that (defendant) sold the property to a third party after entering into the contract, then (claimant) also may recover the difference between the fair market value of the property on the date of the breach and the contract price.
                        NOTES ON USE

                        The court should give this instruction when a buyer is seeking damages as a remedy for the breach of a contract for the sale of real property. This instruction does not apply to claims for specific performance. See Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (a decree of specific performance is an equitable remedy); 381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So.2d 1385, 1387 (Fla. 4th DCA 1996) (the right to a jury trial applies only to legal and not equitable causes of action).
                        SOURCES AND AUTHORITIES

                        1. In Gassner v. Lockett, 101 So.2d 33, 34 (Fla. 1958), the Florida Supreme Court, quoting Key v. Alexander, 108 So. 883, 885 (Fla. 1926), stated (emphasis and internal quotations omitted):
                          The law is well settled that in an action brought by the vendee against the vendor upon a valid contract for the sale of land when the vendor has breached such contract, the general rule as to the measure of damages is that the vendee is entitled to such purchase money as he paid, together with interest and expenses of investigating title. This rule, however, does not apply where there is a want of good faith in the vendor, which may be shown by any acts inconsistent with the utmost good faith. In such cases, or in cases where the vendor had no title but acting on the supposition that he might acquire title, he is liable for the value of the land at the time of the breach with interest from that date . . . .

                          The reason for the rule seems to be that where a vendor acts in good faith he should not be liable for more than the actual loss which might be suffered by the vendee. On the other hand, there is no reason why the vendor should be allowed to benefit from such mistake even though it was made in good faith. Every rule of logic and justice would seem to indicate that where a vendor is unable to perform a prior contract for the sale of lands because of a subsequent sale of the same land, he should be held, to the extent of any profit in the subsequent sale, to be a trustee for the prior vendee and accountable to such vendee for any profit.
                        2. Hollywood Mall, Inc. v. Capozzi, 545 So.2d 918, 921 (Fla. 4th DCA 1989) (“To obtain damages for anticipatory breach of contract, the purchaser must also show that he was ready, willing, and able to perform the contract.”) (citing Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181 (Fla. 1982)).
                          3. Coppola Enterprises, Inc. v. Alfone, 531 So.2d 334, 335-36 (Fla. 1988) (“A seller will not be permitted to profit from his breach of a contract with a buyer, even absent proof of fraud or bad faith, when the breach is followed by a sale of the land to a subsequent purchaser.”).
                            4. Port Largo Club, Inc. v. Warren, 476 So.2d 1330, 1333 (Fla. 3d DCA 1985) (“Where bad faith exists a purchaser may obtain, as a portion of his full compensatory damages, loss of bargain damages, i.e., the difference between the contract price and the value of the property on the closing date.”).

                            5. Wolofsky v. Behrman, 454 So.2d 614, 615 (Fla. 4th DCA 1984) (“Florida has long since aligned itself with the English rule announced in Flureau v. Thornhill, 2 W.Bl. 1078, 96 Eng.Rep. 635, to the effect that, except where a vendor has acted in bad faith, his liability for breach of a land sale contract is limited to the amount of the deposit paid by the purchaser, with interest and reimbursement for expenses in investigating title to the property. However, absent good faith, he is liable for full compensatory damages, including the loss of his bargain, which is the difference between the value of the property and the contract price.”).

                            6. Bosso v. Neuner, 426 So.2d 1209, 1212 (Fla. 4th DCA 1983) (“However, where bad faith exists the purchaser may obtain loss of bargain damages which is the difference in value between the price the purchaser had agreed to pay and the value of the property on the contracted date for closing.”).

                            7. Horton v. O’Rourke, 321 So.2d 612, 613 (Fla. 2d DCA 1975) (“[I]n the absence of bad faith the damages recoverable for breach by the vendor of an executory contract to convey title to real estate are the purchase money paid by the purchaser together with interest and expenses of investigating title.”).

                            357 Seller’s Damages for Breach of Contract
                            to Purchase Real Property

                            To recover damages for the breach of a contract to buy real property, (claimant) must prove that [he] [she] [it] performed, or had the ability to perform, all of [his] [her] [its] obligations necessary for closing.

                            If (claimant) proves that [he] [she] [it] performed, or had the ability to perform, all of [his] [her] [its] obligations necessary for closing, then (claimant) may recover:

                            1. The difference between the contract sales price and the fair market value of the property on the date of the breach, less any amount which (defendant) previously paid; and
                              2. Any damages which the parties contemplated when the parties made the contract and which normally result from the breach of contract.
                              NOTES ON USE

                              1. The court should give this instruction when a seller is seeking damages as a remedy for the breach of a contract for the purchase of real property. This instruction does not apply to claims for specific performance. See Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (a decree of specific performance is an equitable remedy); 381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So.2d 1385, 1387 (Fla. 4th DCA 1996) (the right to a jury trial applies only to legal and not equitable causes of action).

                              2. The court should give this instruction where the contract does not contain a liquidated damages provision or where the liquidated damages provision has been determined to be unenforceable.
                              SOURCES AND AUTHORITIES

                              1. Pembroke v. Caudill, 37 So.2d 538, 541 (Fla. 1948) (receded from on other grounds by Hutchison v. Tompkins, 259 So.2d 129, 130 (Fla. 1972)) (“[T]he measure of the sellers’ damage ordinarily being in such cases [where the buyer breaches the contract] the difference between the agreed purchase price and the actual value of the property at the time of the breach of the contract of purchase, less the amount paid.”).

                              2. Buschman v. Clark, 583 So.2d 799, 800 (Fla. 1st DCA 1991) (“[T]he measure of damages for breach of a real estate sales contract is the difference between the contract sales price and the fair market value of the property on the date of the breach. All additional damages must be alleged and proved to have been contemplated by the parties and must be a natural and proximate result of the breach.”).

                              3. When the seller elects to sue for breach of contract, “the measure of damages is the difference between the price the buyer agreed to pay for the property and the fair market value of the property on the date of the breach.” Frank Silvestri, Inc. v. Hilltop Developers, Inc., 418 So.2d 1201, 1203 (Fla. 5th DCA 1982). “If a seller has suffered additional damage, he must allege and prove that those damages were contemplated by the parties and were a natural and proximate result of the breach.” Id. at 1203 n.1.

                              4. Cohen v. Champlain Towers N. Assocs., 452 So.2d 989, 991 (Fla. 3d DCA 1984) (seller must show ability to perform all conditions precedent to recover damages) (citing Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181 (Fla. 1982)).

                              5. Redmond v. Prosper, Inc., 364 So.2d 812, 813 (Fla. 3d DCA 1978) (proper measure of damages for breach of real estate contract is “the excess of the contract sales price over the market value as of the time of the breach, less the amount previously paid”).

                              6. Popwell v. Abel, 226 So.2d 418, 422 (Fla. 4th DCA 1969) (“In the ordinary case where a purchaser of land breaches his contract to buy, the difference between the value of the land on the date of breach as compared with the date of sale would restore the vendor, but the vendor may still allege and prove as proper elements of damage all those damages contemplated by the parties which are a natural and proximate result of the breach.”).

                              [Revised: 04-24-2014]