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Amendments to Standard Jury Instructions in Contract and Business Cases

Amendments to Standard Jury Instructions in Contract and Business Cases

The Supreme Court Committee on Standard Jury Instructions—Contracts and Business publishes these new or amended Standard Jury Instructions—Contracts and Business. The Committee proposes amending or creating the following: 416.xx, Torts—Breach of Duty to Disclose—Residential; 416.xx, Piercing the Corporate Veil; 416.xx, Legal Status of Entities; 416.xx, Legal Cause; 416.xx, Promissory Estoppel; 416.20, Interpretation—Construction Against Drafter; 416.26, Affirmative Defense—Unilateral Mistake of Fact; Form 416.27, Model Form of Verdict For Affirmative Defense—Undue Influence; 416.28, Model Form of Verdict for Affirmative Defense—Fraud; 416.30, Model Form of Verdict for Affirmative Defense—Waiver; Form 416.31, Model Form of Verdict for Affirmative Defense—Novation; Form 416.32, Model Form of Verdict For Affirmative Defense—Statute of Limitations.

< p>Interested parties have until May 31, 2017, to submit comments electronically or by mail to the Contract and Business Committee at [email protected], or to the chair of the Contract and Business Committee, Manuel Farach, McGlinchey Stafford, PLLC, 1 East Broward Boulevard, Suite 1400, Fort Lauderdale, FL 33301-1834, [email protected], and a copy to The Florida Bar liaison for the committee, Krys Godwin, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-6523, [email protected].

To [recover damages from] [be entitled to rescind the transaction with] (defendant) for nondisclosure in connection with the purchase of residential real property, (claimant) must prove all of the following:

1. There was a condition in the property that:
A. Materially and adversely affected the value of the property; and

B. Was not readily observable and was not otherwise known to (claimant).

2. (Defendant) knew of the condition and did not disclose it to (claimant) .

1. Johnson v. Davis , 480 So. 2d 625 (Fla. 1985), held that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.”

2. “As crafted by the supreme court [in Johnson v. Davis], the materiality of a fact is to be determined objectively by focusing on the relationship between the undisclosed fact and the value of the property.” Billian v. Mobil Corp., 710 So. 2d 984, 987 (Fla. 4th DCA 1998).

< p>3. The committee takes no position on the precise parameters of the “readily observable” standard as that is generally a question of fact for the jury to determine. Compare Nelson v. Wiggs, 699 So. 2d 258 (Fla. 3d DCA 1997); M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91 (Fla. 2002); Newbern v. Mansbach, 777 So. 2d 1044 (Fla. 1st DCA 2001)

A (form of business entity) is a legal entity separate from its owner(s). An owner can be an/a [individual] [ (form of business entity) ]. The owner(s) are not liable for the acts of the (form of business entity) unless there is a piercing of the corporate veil. In this case, (Claimant) seeks to “pierce the corporate veil” between (form of business entity) and (Owner) so as to impose obligations upon (Owner) which otherwise would be owing, if at all, solely from (form of business entity) .

In order to pierce the corporate veil and hold (Owner) liable for obligations of (form of business entity), (Claimant) must show that:

1. (Owner) dominated and controlled (form of business entity) such that:
a. (form of business entity) ’s separate identity was not sufficiently maintained, and

b. (form of business entity) lacked an existence independent from (Owner); and

2. The corporate form of (business entity) was [formed] [used] for a fraudulent or improper purpose; and

3. (Claimant) was harmed by the fraudulent or improper [formation] [use] of the corporate form of (business entity).

1. The context of each case dictates what terms should be inserted into the bracketed spaces. Sometimes, plaintiffs or other claimants sue both the business entity and the individual who are the subjects of the veil piercing claim, so the form instruction identifies the defendants as “(form of business entity)” and “Owner,” but this may not be appropriate in all cases. There may also be more than one entity or individual in any particular case.

2. “The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally.” Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120 (Fla. 1984).

< p>3. Although this doctrine arose in the corporate context, case law appears to apply this doctrine to other business entities such as limited liability companies. See, e.g., Houri v. Boaziz, 196 So. 3d 383 (Fla. 3d DCA 2016) (discussing piercing the veil of limited liability companies).

Dania Jai-Alai Palace, Inc. v. Sykes , 450 So. 2d 1114, 1120 (Fla. 1984) (citing Advertects v. Sawyer Industries, Inc. , 84 So. 2d 21, 23, 24 (Fla. 1955)), is the seminal case on this topic; Beltran v. Miraglia , 125 So. 3d 855 (Fla. 4th DCA 2013) (causality of harm arose from improper conduct of the defendant); Gasparini v. Pordomingo , 972 So. 2d 1053 (Fla. 3d DCA 2008) (only one or few owners would not permit piercing of corporate veil even if it were the alter ego of the shareholder); Steinhardt v. Banks , 511 So. 2d 336 (Fla. 4th DCA 1987) (illegal purpose, fraud, or evading existing obligations).

[Plaintiff] [Defendant] is a (type of business entity) . A (type of business entity) is a person under the law. All persons, whether (type of business entity) or individuals, are entitled to equal treatment under the law.

A (type of business entity) can act only through its [agent(s)] [employee(s)] [officer(s)] [director(s)] [manager(s)] [member(s)] [partner(s)].

1. Not every entity ( e.g ., sole proprietorships and general partnerships) may constitute a legal person, and the court should only give this instruction when the entity is recognized under the law as a separate legal person. A government organization may be a separate legal person under the law and, as determined by the court, may be deemed a business entity within the meaning of this instruction.

2. The list of individuals through which an entity can act is not exhaustive. Additionally, individuals may act in more than one capacity on behalf of an entity, and an entity may act through more than one individual. The court should tailor this instruction as the circumstances of the case require when the entity is recognized under the law as a legal person.

< p>3. In an appropriate situation, it may be necessary for the court to instruct the jury whether the agent, employee, officer, director, manager, member, or partner of the entity is testifying on behalf of himself/herself, the entity, or both.

a. Legal cause generally:

Breach of a fiduciary duty is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the breach of fiduciary duty, the [loss] [injury] [or] [damage] would not have occurred.

b. Concurring cause:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage] a breach of the fiduciary duty need not be the only cause. A breach of a fiduciary duty may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage].

c. Intervening cause:

< p>Do not use the bracketed first sentence if this instruction is preceded by the instruction on concurring cause:*

< p>*[In order to be regarded as a legal cause of [loss] [injury] [or] [damage], breach of fiduciary duty need not be its only cause.] Breach of fiduciary duty may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] occurring after the breach of fiduciary duty occurs if [such other cause was itself reasonably foreseeable and the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage]] [or] [the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the breach of fiduciary duty and the breach of fiduciary duty contributes substantially to producing it].

A party who has not entered a contract to do something, but who has promised to do something, sometimes has a legal obligation to fulfill the promise, but only when specific conditions are met. This is sometimes called “promissory estoppel.” To recover damages from (defendant) for promissory estoppel, (claimant) must prove all of the following:

1. (Defendant) promised to [describe subject matter of alleged promise];

2. (Defendant) should have expected the promise to change (claimant)’s behavior;

< p>3. In reliance on (defendant)’s promise, (claimant) changed [his] [her] [its] behavior; and
< p>4. Injustice can be avoided only if the promise is enforced.

To “change behavior” means to do something of significance that the person otherwise would not have done, or to refrain from doing something of significance that the person otherwise would have done.

A claim of this kind must be proved by clear and convincing evidence, not just by the greater weight of the evidence. Your verdict will be for (claimant) on this claim only if you find by clear and convincing evidence each of the elements that I just described to you.

1. The definition of the clear and convincing evidence standard is set forth in Standard Jury Instruction—Civil 405.4.

2. No Florida court has directly decided the issue of whether the court or a jury should decide the issues related to a promissory estoppel claim; however, there are several Florida appellate decisions that have indicated that it is appropriate to submit such a claim to a jury. See, e.g., Sunshine Bottling Co. v. Tropicana Prods. Inc., 757 So. 2d 1231, 1232 (Fla. 3d DCA 2000) (concluding that trial court erred in entering a judgment notwithstanding the verdict and reversing and remanding for reinstatement of the jury’s award on the promissory estoppel claim); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297, 306 (Fla. 1st DCA 1999) (reversing order dismissing promissory estoppel claim and remanding with instructions for a jury trial).

1. The Florida Supreme Court recognized the existence of an affirmative cause of action for promissory estoppel in W.R. Grace & Co. v. Geodata Servs., Inc ., 547 So. 2d 919 (Fla. 1989). The Court held that the doctrine applies “where the promise is definite, of a substantial nature, and established by clear and convincing evidence.” Id . at 920. The Court further stated that “[t]he basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts sec. 90 (1979),” and quoted the following from the Restatement: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise 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.” Id . at 924. But see , State, Dep’t of Health and Rehabilitative Servs. v. Law Offices of Donald W. Belveal , 663 So. 2d 650, 652 (Fla. 2d DCA 1995) (“The law of this state recognizes that the theory of promissory estoppel applies to the sovereign only under exceptional circumstances.”).

2. In Doe v. Univision Television Grp., Inc., 717 So. 2d 63, 65 (Fla. 3d DCA 1998), the court held that “the doctrine of promissory estoppel comes into play where the requisites of contract are not met, yet the promise should be enforced to avoid injustice.”

< p>3. A cause of action for promissory estoppel is not available where the claim would be barred by the statute of frauds. Coral Reef Drive Land Dev., LLC v. Duke Realty Ltd. P’ship, 45 So. 3d 897, 906 n. 8 (Cope, J., dissenting), citing Tannenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So. 2d 777, 779 (Fla. 1966).

You must first attempt to determine the meaning of the ambiguous term[s] in the contract from the evidence presented and the previous instructions. If you cannot do so, only then should you consider which party drafted the disputed term[s] in the contract and then construe the language against that party.

1. This instruction endeavors to explain to the jury that this principle should be secondary to the consideration of other means of interpretation, principally the consideration of parol evidence that may explain the parties’ intent at the time they entered into the contract. See W. Yellow Pine Co. v. Sinclair , 90 So. 828, 831 (Fla. 1922) (the rule to construe against the drafter should not be used if other rules of construction reach the intent of the parties); The School Bd. of Broward Cnty. v. The Great Am. Ins. Co ., 807 So. 2d 750 (Fla. 4th DCA 2002) (the rule to construe against the drafter is a secondary rule of interpretation and should be used as a last resort when all ordinary interpretive guides have been exhausted); DSL Internet Corp. v. TigerDirect, Inc ., 907 So. 2d 1203, 1205 (Fla. 3d DCA 2005) (the against-the-drafter rule is a rule of last resort and is inapplicable if there is evidence of the parties’ intent). There is a risk that the jury may place too much emphasis on this rule, to the exclusion of evidence and other approaches; therefore, this instruction should be given with caution. One district court of appeal has held that express contractual provisions prohibiting use of this principle must be enforced. Agile Assur. Group, Ltd. v. Palmer , 147 So. 3d 1017 (Fla. 2d DCA 2014).

2. The Committee has been unable to find case law authority applying this principle when the contract contains language stating the contract will not be interpreted against the drafter. If the contract at issue or an applicable statute provides that the contract will not be construed against the drafter, the Committee would suggest that this be taken into consideration before this instruction is used, particularly given the secondary rule of interpretation principle expressed in the preceding paragraph and established Florida law that every provision in a contract should be given meaning and effect. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 941 (Fla. 1979) (holding that every provision in a contract should be given meaning); see also section 542.335(1)(h), Florida Statutes (providing an example in the context of not construing a restrictive covenant against the drafter).

< p>3. The Committee strongly recommends the use of this instruction in connection with a verdict form that clarifies, by special interrogatory, what the term or phrase is that the court has declared to be ambiguous. See First Nat’l Bank of Lake Park v. Gay, 694 So. 2d 784, 789 (Fla. 4th DCA 1997) (discussing that interrogatory verdict forms should track the same issues and defenses in the jury instructions).

1. The existence of this interpretation principle is well established. “An ambiguous term in a contract is to be construed against the drafter.” City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). “Generally, ambiguities are construed against the drafter of the instrument.” Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 (Fla. 1980). “[A] provision in a contract will be construed most strongly against the party who drafted it ….” Sol Walker & Co. v. Seaboard Coast Line R.R. Co., 362 So. 2d 45, 49 (Fla. 2d DCA 1978). Where the language of contract is ambiguous or doubtful, it should be construed against the party who drew the contract and chose the wording. Vienneau v. Metropolitan Life Ins. Co., 548 So. 2d 856 (Fla. 4th DCA 1989); Am. Agronomics Corp. v. Ross, 309 So. 2d 582 (Fla. 3d DCA 1975). “To the extent any ambiguity exists in the interpretation of [a] contract, it will be strictly construed against the drafter.” Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006); Russell v. Gill, 715 So. 2d 1114 (Fla. 1st DCA 1998).

2. If only one party drafted a contract, then the jury should consider that party to be the drafter in the context of this instruction. However, if more than one party contributed to drafting a contract, provision, or term, then the jury should consider the drafter to be the party that actually chose the wording at issue. Finberg v. Herald Fire Ins. Co., 455 So. 2d 462 (Fla. 3d DCA 1984); Bacon v. Karr, 139 So. 2d 166 (Fla. 2d DCA 1962). An additional tool the jury can utilize to determine who is the drafter is they can interpret the language at issue against the party which benefits from the language. Belen School, Inc. v. Higgins, 462 So. 2d 1151 (Fla. 4th DCA 1984); Watson v. Poe, 203 So. 2d 14 (Fla. 4th DCA 1967).

(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.]

< p>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]

< p>[[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.

1. The court should not give this instruction if it determines that the alleged mistake was not material. The Committee does not find there is sufficient clarity in the law at this time that warrants a standard instruction on the affirmative defense of unilateral mistake to a breach of contract action. In Maryland Casualty Co. v. Krasnek , 174 So. 2d 541, 542 (Fla. 1965), the Florida Supreme Court recognized unilateral mistake as an equitable defense to a breach of contract action. In that case, the Court indicated that the defense applies if: (1) the mistake did not result from an inexcusable lack of due care in the circumstances; and (2) the non-mistaken party’s position had not been so changed in reliance on the contract that it would be unconscionable to order rescission. Id. at 543.

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.Florida’s district courts of appeal have interpreted the Krasnek test for unilateral mistake in different ways. For example, in Rachid v. Perez, 26 So. 3d 70, 72 (Fla. 3d DCA 2010), the Third District Court of Appeal articulated the elements of the defense as a four-part test as follows:

(1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.

3. contrast, in Garvin v. Tidwell , 126 So. 3d 1224, 1228 (Fla. 4th DCA 2012), the Fourth District Court of Appeal articulated the elements of the defense as follows:

a trial court may rescind an agreement based on unilateral mistake if “(1) the mistake did not result from an inexcusable lack of due care, and (2) defendant’s position did not so change in reliance that it would be unconscionable to set aside the agreement.” [Quoting Stamato v. Stamato , 818 So. 2d 662, 664 (Fla. 4th DCA 2002).] Additionally, we will look at whether the unilateral mistake goes to the “very substance of the agreement.” [Quoting Rock Springs Land Co. v. West , 281 So. 2d 555, 556 (Fla. 4th DCA 1973); Langbein v. Comerford , 215 So. 2d 630, 631 (Fla. 4th DCA 1968).]

4. Finally, in Orkin Exterminating Co. v. Palm Beach Hotel Condominium Association, Inc. , 454 So. 2d 697 (Fla. 4th DCA 1984), a different panel of the Fourth District quoted with approval the test for unilateral mistake set forth in the Restatement (Second) of Contracts, secs. 153, 154 (1979). See also DePrince v. Starboard Cruise Services, Inc. , 163 So. 3d 586 (Fla. 3d DCA 2015) (collecting cases and discussing the various formulations of the test for the unilateral mistake defense).

5. Based on the foregoing, and pending further development in the law, the Committee offers no standard instruction on the unilateral mistake defense.

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

< p>(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or
< p>(b) the other party had reason to know of the mistake or his fault caused the mistake.
< p>§ 154. When a Party Bears the Risk of a Mistake.
< p>A party bears the risk of a mistake when
< p>(a) the risk is allocated to him by agreement of the parties, or
< p>(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
< p>(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
FORM 416.27 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—UNDUE INFLUENCE

We, the Jury, return the following verdict:

1. a. Did (Defendant) prove that (Claimant) used a relationship of trust and confidence to control, persuade, or pressure (Defendant) into agreeing to the contract?
YES. …….. NO. ………

If your answer to question 1.a. is NO, please answer question 1.b. If your answer to question 1.a. is YES, please answer question 2.

1. b. Did (Defendant) prove that (Claimant) used (Defendant) ’s weakness of mind to control, persuade, or pressure (Defendant) into agreeing to the contract?
YES. ……… NO. ………

If your answer to question 1.b. is NO, please answer question 1.c. If your answer to question 1.b. is YES, please answer question 2.

1. c. Did (Defendant) prove that (Claimant) used (Defendant) ’s needs or distress to control, persuade, or pressure (Defendant) into agreeing to the contract?
YES. ……… NO. ………

If your answer to question 1.c. is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.

2. Did (Defendant) prove that (Defendant) would not have voluntarily agreed to the contract without (Claimant) controlling, persuading, or pressuring (Defendant) to agree to the contract?
YES. ……… NO. ………

If your answer to question 2 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.

SO SAY WE ALL, this _______ day of ____________, 2____.

FOREPERSON

1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.27 (Affirmative Defense—Undue Influence).

We, the Jury, return the following verdict:

1. a. Did (Defendant) prove that (Claimant) represented that (insert alleged fraudulent statement) ?
YES. ……… NO. ………

If your answer to question 1.a. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.a. is YES, please answer question 1.b.

1. b. Was the (alleged fraudulent statement) false?
YES. ……… NO. ………

If your answer to question 1.b. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.b. is YES, please answer question 2.

1. c. Did (Defendant) prove that the representation was material to the contract?
YES. ……… NO. ………

If your answer to question 1.c. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.

2. Did (Defendant) prove that (Claimant) knew that the representation was false?
YES. ……… NO. ………

If your answer to question 2 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3.

Did (Defendant) prove that (Claimant) made the representation to persuade (Defendant) to agree to the contract?

YES. ……… NO. ………

If your answer to question 3 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, please answer question 4.

3. Did (Defendant) prove that (Defendant) relied on the representation?
YES. ……… NO. ………

If your answer to question 4 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 4 is YES, please answer question 5.

4. Did (Defendant) prove that (Defendant) would not have agreed to the contract if (Defendant) had known that the representation was false?
YES. ……… NO. ………

If your answer to question 5 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 5 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.

SO SAY WE ALL, this _______ day of __________, 2____.

FOREPERSON

1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.28 (Affirmative Defense—Fraud).

We, the Jury, return the following verdict:

1. Did (Defendant) prove that (Claimant’s) right to have (Defendant) (insert description of performance) actually existed?
YES. ……. NO. …….

If your answer to question 1 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.

2. Did (Defendant) prove that (Claimant) knew or should have known (Claimant) had the right to have (Defendant) (insert description of performance) ?
YES. ……. NO. …….

If your answer to question 2 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3.

3. Did (Defendant) prove that (Claimant) freely and intentionally gave up (Claimant’s) right to have (Defendant) (insert description of performance) ?
YES. ……. NO. …….

If your answer to question 3 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.

SO SAY WE ALL, this _______ day of ____________, 2______.

_____________________
FOREPERSON

1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.30 (Affirmative Defense—Waiver).

We, the Jury, return the following verdict:

1. Did (Defendant) prove that all parties to the contract agreed, by words or conduct, to cancel the original contract and to submit a new contract in its place?
YES. ……. NO. …….

If your answer to question 1 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.

SO SAY WE ALL, this _______ day of ____________, 2______.

_____________________
FOREPERSON

1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.31 (Affirmative Defense—Novation).

We, the Jury, return the following verdict:

If a breach of contract occurred, did (Defendant) prove that such breach occurred before (insert date four or five years before date of filing suit)?

YES. ……. NO. …….

If your answer to question 1 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.

SO SAY WE ALL, this _______ day of ____________, 2______.

FOREPERSON

1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.32 (Affirmative Defense—Statute of Limitations).