Breach of Contract Defense in Florida

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If you’re sued for breach of contract, it’s not enough that you simply deny wrongdoing.  There are a number of defenses, known as affirmative defenses, which in Florida must be claimed in your answer to the lawsuit, or your ability to raise these defenses may be considered waived.

In simple terms, a broken contract is a broken promise for which the law provides a remedy. Unfortunately, in today’s world, broken promises occur far too often. When one of the parties to a contract breaks his promise by failure to perform his obligations under the terms of a contract and the breaching party has no legal justification for the breach, the injured party has a right to file a lawsuit for breach of contract. Breach of contract is one of the most common claims in civil litigation.

A breach of contract occurs when any act or omission of a party does not live up to the promises exchanged in the contract. Generally, it is not relevant whether the breach is intentional or unintentional. Although there are limitations, verbal contracts are generally enforceable.

In order to win a breach of contract claim in Florida, a party must prove:

  • Existence of a valid, enforceable contract
  • A promise within the contract was broken
  • The broken promise caused damages to the non-breaching party.

A plaintiff must prove all three elements to win.  The defendant needs only one negative to win.

In Florida, the defendant in a breach of contract claim has twenty (20) days to file an answer. If a defendant merely denies all the plaintiffs claims, the plaintiff has the burden of proving his case. The standard of evidence in a breach of contract claim is “by a preponderance of evidence,” a relatively low hurdle to leap.

However, in addition to denials in your breach of contract suit answer, your answer should likely include affirmative defenses.  An affirmative defense generally does not deny the mitigating facts or circumstances. Rather, the affirmative defense is a defendant’s response, stating a reason why the plaintiff should not win the suit. It’s sort of like saying, “Whether or not what he said was true, he still loses this lawsuit because  . . .”  A defendant has the burden to prove his affirmative defense claims by a preponderance of the evidence.

For example, an affirmative defense to a breach of contract is duress. Claiming an affirmative defense of duress may state, “Even if John did not perform at Mary’s show, he did not breach a contract because Mary held a gun to John and told him to sign the contract or she would shoot him.” John is not arguing that he did not agree to perform.  He’s arguing that whether he agreed to perform or not is irrelevant, because there was not a valid contract due to the duress placed upon him by Mary.

Common Affirmative Defenses to a Breach of Contract Claim

  • This contract is unenforceable because a written contract is required. Oral contracts are enforceable unless a written contract is required by a strangely named rule, the statute of frauds.  The statute of frauds requires only that certain contracts be in writing (e.g. the sale of real property.)
  • Illegal contract. A contract is unenforceable if it is illegal to the essential (e.g. a contract to murder.) However, a court will sometimes sever the illegal aspect from the agreement, leaving the rest of the contract enforceable.
  • Mistakes. This can get tricky. You may defend yourself by proving that both parties were in error on the essential of the contract. For example, you both thought a painting was a Warhol, but it turned out to be a photocopy of a Warhol. However, you can not argue that after agreeing and then thinking about it further that the entire deal was a mistake.
  • You lacked capacity to contract. The argument here is that you couldn’t understand what you were doing when you entered into the deal. This is a common defense in cases of minors and those with mental incapacity.
  • The contract is indefinite. This is fancy language meaning “We can’t figure out what this contract is agreeing to, because it’s vague in the essentials.”  Agreements to agree (such as letters of intent or agreements in principle) are often considered indefinite and therefore unenforceable.
  • You were fraudulently induced to enter into a contract or under duress. Here the affirmative defense is that you were induced by lies or under duress. Duress, for example, is found in Frances Ford Coppola’s  film The Godfather. Michel describes a deal his father made, saying, “Luca Brasi put a gun to the bandleaders head, and my father assured him that either his brains or his signature would appear on that contract.” Obviously the band leader has an affirmative defense of duress.
  • Unconscionable contract. Another difficult concept. Generally, contracts that are grossly unfair will not be enforced, but there are some additional requirements. The bargaining power must have been severely imbalanced and the party with more power is somehow taking advantage of the situation by forcing the unfair conditions, clauses, or waivers on the other party.
  • Estoppel often called Promissory Estoppel.  When one party makes a statement excusing performance of the agreement and the other party relies on that statement, the first party may be prevented from later denying that statement and claiming a breach. For example, your landlord says that it’s ok to pay a week late, and the next day your stuff is on the curb.
  • Arguing in the Alternative. Another tricky concept for non-lawyers to understand is the ability to argue claims or defenses with conflicting theories. The law actually permits you to claim as many defenses as you want, even if the arguments contradict each other. For example, you may argue that the contract is invalid for illegality, that in fact you did perform, and promissory estoppel (because your failure to perform was excused by the other party’s actions or promises). It sounds strange, but it works because the arguments are considered individually and exclusively.
  • Argue damages. If you admit the breach, or you are found guilty of the breach, the game is still afoot. You can then further argue the amount of their damages.


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