416.4 BREACH OF CONTRACT — ESSENTIAL FACTUAL
ELEMENTS
To recover damages from (defendant) for breach of contract, (claimant)
must prove all of the following:
1. (Claimant) and (defendant) entered into a contract;
2. (Claimant) did all, or substantially all, of the essential things
which the contract required [him] [her] [it] to do [or that [he] [she] [it]
was excused from doing those things];
3. [All conditions required by the contract for (defendant’s)
performance had occurred;]
4. [(Defendant) failed to do something essential which the contract
required [him] [her] [it] to do] [(defendant) did something which the contract
prohibited [him] [her] [it] from doing and that prohibition was essential to the
contract]; and
Note: If the allegation is that the defendant breached the contract by doing
something that the contract prohibited, use the second option.
5. (Claimant) was damaged by that failure.
NOTE ON USE FOR 416.4
In many cases, some of the above elements may not be contested. In those
cases, users should delete the elements that are not contested so that the jury can
focus on the contested issues.
SOURCES AND AUTHORITIES FOR 416.4
1. An adequately pled breach of contract action requires three elements:
(1) a valid contract; (2) a material breach; and (3) damages. Friedman v. New York
Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008). This general rule was
enunciated by various Florida district courts of appeal. See Murciano v. Garcia,
958 So. 2d 423, 423-24 (Fla. 3d DCA 2007); Abbott Laboratories, Inc. v. General
Elec. Capital, 765 So. 2d 737, 740 (Fla. 5th DCA 2000); Mettler, Inc. v. Ellen
Tracy, Inc., 648 So. 2d 253, 255 (Fla. 2d DCA 1994); Knowles v. C.I.T. Corp., 346
So. 2d 1042, 1043 (Fla. 1st DCA 1977).
2. To maintain an action for breach of contract, a claimant must first
establish performance on the claimant’s part of the contractual obligations imposed
by the contract. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing,
Inc., 569 So. 2d 845, 848 (Fla. 1st DCA 1990). A claimant is excused from
establishing performance if the defendant anticipatorily repudiated the contract.
Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181, 182-83 (Fla.
1982). Repudiation constituting a prospective breach of contract may be evidenced
by words or voluntary acts but refusal must be distinct, unequivocal and absolute.
Mori v. Matsushita Elec. Corp. of Am., 380 So. 2d 461, 463 (Fla. 3d DCA 1980).
3. “Substantial performance is performance ‘nearly equivalent to what
was bargained for.’” Strategic Resources Grp., Inc. v. Knight-Ridder, Inc., 870 So.
2d 846, 848 (Fla. 3d DCA 2003). “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).
4. The doctrine of substantial performance applies when the variance
from the contract specifications is inadvertent or unintentional and unimportant so
that the work actually performed is substantially what was called for in the
contract. Lockhart v. Worsham, 508 So. 2d 411, 412 (Fla. 1st DCA 1987). “In the
context of contracts for construction, the doctrine of substantial performance is
applicable only where the contractor has not willfully or materially breached the
terms of his contract or has not intentionally failed to comply with the
specifications.” National Constructors, Inc. v. Ellenberg, 681 So. 2d 791, 793 (Fla.
3d DCA 1996).
5. “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.” Hufcor/Gulfstream, Inc. v. Homestead Concrete & Drainage, Inc., 831 So. 2d
767, 769 (Fla. 4th DCA 2002).
