Proposed standard jury instructions--contract and business cases.

The Supreme Court Committee on Standard Jury Instructions--Contract and Business Cases (the "Committee") submits the following new instructions for comment.

300 Breach Of Contract--Introduction

301 Third-Party Beneficiary

302 Contract Formation--Essential Factual Elements

303 Breach Of Contract--Essential Factual Elements

304 Oral Or Written Contract Terms

305 Implied-In-Fact Contract

307 Contract Formation--Offer

308 Contract Formation--Revocation Of Offer

309 Contract Formation--Acceptance

310 Contract Formation--Acceptance By Silence Or Conduct

313 Modification

314 Interpretation--Disputed Term(s)

315 Interpretation--Meaning Of Ordinary Words

316 Interpretation--Meaning Of Disputed Technical Or Special Words

317 Interpretation--Construction Of Contract As A Whole

318 Interpretation--Construction By Conduct

319 Interpretation--Reasonable Time

320 Interpretation--Construction Against Drafter

321 Existence Of Conditions Precedent Disputed

322 Occurrence Of Agreed Condition Precedent

The proposed instructions, including the numbering scheme, are modeled on and, where consistent with Florida law, use the language contained in the Judicial Council Of California's Civil Jury Instructions ("CACI"). The Committee wishes to acknowledge its appreciation to the Judicial Council of California, which has graciously agreed to permit the use of its CACI instructions as a model for the drafting of these instructions.

The Committee adopts the conventions and approach taken by the Supreme Court Committee on Standard Jury Instructions in Civil Cases, as quoted below:

Boldface type, brackets, parentheses, and italics are used in standard instructions to give certain directions as follows:

Boldface type identifies words that the trial judge should speak aloud to instruct the jury.

Brackets express variables or alternatives within the text that are to be spoken aloud to the jury.

Bracketed material always appears in boldface type because some or all of the enclosed words must be spoken aloud and provided as part of the instruction. The Notes on Use often provide guidance on the variables appropriate in a given circumstance.

Parentheses signify the need to insert a proper name, a specific item or element, or some other variable that must be supplied by the trial judge. For example, in the following sentence, the designations in parentheses should be replaced with the specific profession of the defendant.

Because the words within the parentheses are directional in nature and not spoken to the jury, they do not appear in boldface type. They merely serve as signals to insert names, titles, or other words that must be spoken aloud. In like manner, throughout the instructions the parties are referred to as "claimant" and "defendant," and these labels may appear in parentheses. The committee does not intend that these labels be used in the jury instructions given to the jury. The judge should name or refer to the parties in the most convenient and clear way.

Italics identify directions to the trial judge.

A Note on Use may appear immediately following an instruction to provide guidance in the use of an instruction. Where the committee determines that a charge on a particular subject does not materially assist the jury, or that the instruction is likely to be argumentative or negative, or is for other reasons inappropriate, the Note on Use will contain the committee's recommendation that no instruction be given. A Note on Use is also used by the committee to set out the committee's reasons for recommending particular treatment and to cite cases and other authorities. The committee uses only illustrative cases and avoids long lists of cases.

The Committee invites all interested persons to comment on the proposed new instructions, reproduced in full below. Comments must be received by the Committee in both hard copy and electronic format on or before July 15. All comments received will be reviewed by the Committee at its next meeting. Revisions to the proposed instructions may be made based upon comments received. Upon final approval of the instruction, the Committee will make a recommendation to the Florida Supreme Court. E-mail your comments in the format of a Word document to Manuel Farach, Committee Vice Chair, Richman Greer, P.A., at mfarach@richmangreer.com. In addition, mail a hard copy of your comments to Standard Jury Instructions Committee--Contract and Business Cases, Jodi Jennings, The Florida Bar, 651 East Jefferson Street, Tallahassee 32399-6584.

300 BREACH OF CONTRACT--INTRODUCTION

(Claimant) claims that [he] [she] [it] and (defendant) entered into a contract for [insert brief summary of alleged contract].

(Claimant) claims that (defendant) breached this contract by [briefly state alleged breach], and that the breach resulted in damages to (claimant).

(Defendant) denies [insert denial of any of the above claims]. (Defendant) also claims [insert affirmative defense].

NOTE ON USE FOR 300

This instruction is intended to introduce the jury to the issues involved in the case. It should be read before the instructions on the substantive law.

301 THIRD-PARTY BENEFICIARY

(Claimant) is not a party to the contract. However, (claimant) may be entitled to damages for breach of the contract if [he] [she] [it] proves that [insert names of the contracting parties] intended that (claimant) benefit from their contract.

It is not necessary for (claimant) to have been named in the contract. In deciding what [insert names of the contracting parties] intended, you should consider the contract as a whole, the circumstances under which it was made, and the apparent purpose the parties were trying to accomplish.

NOTE ON USE FOR 301

While the Supreme Court has not directly weighed in on its applicability (but note Justice Shaw's concurrence in Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 280-81 (Fla. 1985)), the district courts of appeal have cited to the Restatement of Contracts (2d) [section] 302 (1981):

"[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and ... the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.").

Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Assn., Inc., 997 So.2d 433 (Fla. 2d DCA 2008); Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810 (Fla. 3d DCA 1985); Cigna Fire Underwriters Ins. Co. v. Leonard, 645 So.2d 28 (Fla. 4th DCA 1994); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So.2d 870 (Fla. 1st DCA 1989); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484 (Fla. 5th DCA 1987). See also A.R. Moyer, Inc. v. Graham, 285 So.2d 397, 402 (Fla. 1973) and Carvel v. Godley, 939 So.2d 204, 207-208 (Fla. 4th DCA 2006) ("The question of whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.").

302 CONTRACT FORMATION--ESSENTIAL FACTUAL ELEMENTS

(Claimant) claims that the parties entered into a contract. To prove that a contract was created, (claimant) must prove all of the following:

1. The essential contract terms were clear enough that the parties could understand what each was required to do;

2. The parties agreed to give each other something of value. [A promise to do something or not to do something may have value]; and

3. The parties agreed to the essential terms of the contract. When you examine whether the parties agreed to the essential terms of the contract, ask yourself if, under the circumstances, a reasonable person would conclude, from the words and conduct of each party, that there was an agreement. The making of a contract depends only on what the parties said or did. You may not consider the parties' thoughts or unspoken intentions.

   Note: If neither offer nor acceptance is contested, then element #3 should not be given. If (Claimant) did not prove all of the above, then a contract was not created.

   NOTES ON USE FOR 302

1. This instruction should be given only when the existence of a contract is contested. If both parties agree that they had a contract, then the instructions relating to whether a contract was actually formed would not need to be given. At other times, the parties may be contesting only a limited number of contract formation issues. Also, some of these issues may be decided by the judge as a matter of law. Users should omit elements in this instruction that are not contested so that the jury can focus on the contested issues. Read bracketed language only if it is an issue in the case.

2. The general rule of contract formation was enunciated by the Florida Supreme Court in St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004) ("An oral contract ... is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms.").

3. The first element of the instruction refers to the definiteness of essential terms of the contract. "The definition of 'essential term' varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis." Lanza v. Damian Carpentry, Inc., 6 So.3d 674, 676 (Fla. 1st DCA 2009). See also Leesburg Community Cancer Center v. Leesburg Regional Medical Center, 972 So.2d 203, 206 (Fla. 5th DCA 2007) ("We start with the basic premise that no person or entity is bound by a contract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms), supported by consideration.").

4. The second element of the instruction requires giving something of value. In Florida, to...