Amendments to jury instructions in contracts and business cases.

The Supreme Court Committee on Standard Jury Instructions in Contracts and Business Cases submits these amendments to the following Florida Standard Jury Instructions in Contracts and Business Cases: Instructions 416.24, 416.25, new Instructions 416.34, 416.41, and model verdict forms for Instructions 416.3, 416.4, 416.24, 416.25, 416.32. Interested parties have until January 15 to submit comments electronically to the Contracts and Business Cases Committee at sjicontracts@flcourts.org, or to the chair of the Contracts and Business Cases Committee, Manuel Farach, at mfarach@richmangreer.com, and a copy to The Florida Bar liaison for the committee, Heather Telfer, htelfer@flabar.org.

416.24 Breach of Implied Covenant of Good Faith and Fair Dealing

In the contract in this case, there is an implied promise of good faith and fair dealing. This means that neither party will do anything to unfairly interfere with the right of any other party to the contract to receive the contract's benefits; however, the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the contract's terms. (Claimant) contends that (defendant) violated the duty to act in good faith and fairly under [a] specific part[s] of the contract. To establish this claim, (claimant) must prove all of the following:

  1. (Claimant) and (defendant) entered into a contract;

  2. (Claimant) did all, or substantially all, of the significant things that the contract required [him] [her] [it] to do [or that [he] [she] [it] was excused from having to do those things];

  3. All conditions required for (defendant's) performance had occurred;

  4. (Defendant's) actions [or omissions] unfairly interfered with (claimant's) receipt of the contract's benefits;

  5. (Defendant's) conduct did not comport with (claimant's) reasonable contractual expectations under [a] specific part(s) of the contract; and

  6. (Claimant) was [BEGIN STRIKETHROUGH]harmed[END STRIKETHROUGH] damaged by (defendant's) conduct.

    NOTE ON USE FOR 416.24

    The question of whether a particular contract is one in which an implied covenant of good faith and fair dealing applies is a question for the trial court to answer in the first instance.

    SOURCES AND AUTHORITIES FOR 416.24

  7. The implied covenant of good faith and fair dealing exists in virtually all contractual relationships. Sepe v. City of Safety Harbor, 761 So. 2d 1182, 1184 (Fla. 2d DCA 2000); Restatement (Second) of Contracts [section] 205 (1981).

  8. The purpose of the implied covenant of good faith is "to protect the reasonable expectations of the contracting parties." Ins. Concepts & Design, Inc. v. Healthplan Services, Inc., 785 So. 2d 1232, 1234-35 (Fla. 4th DCA 2001). See also Cox v. CSXIntermodal, Inc., 732 So. 2d 1092, 1097 (Fla. 1st DCA 1999) ("[T]he implied covenant of good faith and fair dealing is designed to protect the contracting parties' reasonable expectations.").

  9. The implied covenant of good faith "is a gap filling default rule" which comes into play "when a question is not resolved by the terms of the contract or when one party has the power to make a discretionary decision without defined standards." Speedway SuperAmerica, LLC v. Tropic Enterprises, Inc., 966 So. 2d 1, 3 n.2 (Fla. 1st DCA 2007); see also Cox, 732 So. 2d at 1097.

  10. "Because the implied covenant is not a stated contractual term, to operate it attaches to the performance of a specific or express contractual provision." Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787, 792 (Fla. 2d DCA 2005).

  11. The implied covenant of good faith cannot override an express contractual provision. Snow, 896 So. 2d at 791-92; see also Ins. Concepts, 785 So. 2d at 1234.

  12. "The implied obligation of good faith cannot be used to vary the terms of an express contract." City of Riviera Beach v. John's Towing, 691 So. 2d 519, 521 (Fla. 4th DCA 1997); see also Ins. Concepts, 785 So. 2d at 1234-35 ("Allowing a claim for breach of the implied covenant of good faith and fair dealing 'where no enforceable executory contractual obligation' remains would add an obligation to the contract that was not negotiated by the parties.") (citations omitted).

  13. Good faith means honesty, in fact, in the conduct of contractual relations. Burger King Corp. v. C.R. Weaver, 169 F. 3d 1310, 1315 (11th Cir. 1999) (citing Harrison Land Dev. Inc. v. R & H Holding Co., 518 So. 2d 353, 355 (Fla. 4th DCA 1987)); see also Restatement (Second) of Contracts [section] 205 cmt. a (1981).

    416.25 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:

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

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

    [the parties' agreement assigned the risk to [him] [her] [it]]*

    [or]

    [[he] [she] [it] was aware...

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