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Jury Instructions in Florida Contract and Business Disputes
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Jury Instructions in Florida Contract and Business Disputes

October 25, 2016 Professional Services Industry Legal Blog

Reading Time: 18 minutes

Jury instructions are integral to facilitating each juror’s understanding of the law and the way in which to apply the law, when rendering a verdict following a jury trial. However, until just years ago, Florida lacked the substantive backing of jury instructions that were drafted with the specific intent to be utilized during contract and business law disputes. As standard jury instructions failed to properly guide jurors regarding what issues were of importance in their deliberations, naturally, parties subject to dispute found that jury trials failed to resolve matters in a way that promulgated equitable results to those involved. As we often take breach of contract cases to trial, these jury instructions will be pivotal for our practice at Jimerson Birr moving forward.

Recognizing the need for jury instructions attuned to the disputes of business and contract law, Chief Justice R. Fred Lewis ordered the formation of a committee to address this void in a 2006 administrative order. The committee was composed of individuals from varying backgrounds, with specific expertise and experience in the realm of contract and business law: Florida Supreme Court justices, appellate judges, appellate attorneys, and trial attorneys. In re Standard Jury Instructions — Contract and Business Cases, 116 So. 3d 284, 286-90 (Fla. 2013).

After over six years of hard work and collaboration, jury instructions specifically tailored to address business and contract law disputes were finally unveiled. Id. The instructions addressed a plethora of legal issues including: Contract Formation, Breach of Contract, Contract Interpretation, Oral or Implied Contracts, Affirmative Defenses, Commercial and Contract Points of Law, and Damages. The following is a brief overview of the key points of these instructions.

Breach of Contract

Jury instructions relating to Breach of Contract are five-fold. Instructions address Breach of Contract, Third-Party Beneficiaries, Essential Factual elements (two differing instructions), and Anticipatory Breach. Id.

Utilized when elements of a contract are contested, Essential Factual Elements instructs a jury in situations in which: parties entered into a contract, the parties fulfilled the terms of the contract, all conditions required by the contract for defendant’s performance occurred, defendant did not comply with the terms of the contract (something not allowed by contract or failing to do required act), and the claimant suffered harm.

The Anticipatory Breach instruction is best-used in situations involving claims of breach of contract in which defendant indicated he would not or could not perform the contract and that the plaintiff was willing and able to perform the contract.

Oral or Implied Contracts

There are three instructions for use in oral or implied contract cases. Oral or Written Contract Terms is given when the contract at issue has any oral component. Contract Implied in Fact is given when the jury has to “infer” a contract existed from the facts and circumstances when there is no oral or written contract. This instruction is grounded in case law and American Jurisprudence on Contracts. The last instruction is Contract Implied in Law and it encompasses quasi contract, unjust enrichment, restitution, constructive contract, and quantum meruit. These contracts are not based on facts, but on equity that may be decided by the judge. This instruction also states that the claimant must show that the defendant owes him or her money by the claimant proving a benefit, knowledge of the benefit, acceptance of the benefit, and that it is fair that the defendant must pay for the benefit. Id.

Contract Formation

Contract Formation also consists of five instructions. These instructions address Essential Factual Elements of Contract Formation, Offer, Revocation of Offer, Acceptance, and Acceptance by Silence or Conduct.

The Essential Facts of Contract Formation instruction is utilized if a party contests the formation of a contract or certain portions of it, and those outstanding issues are not decided by the judge as a matter of law before trial. This instruction lists the elements of a contract and what each element means is left to the discretion of the jury. The next element of this instruction is “[t]he parties agreed to give each other something of value,” and the last element is “[t]he parties agreed to the essential terms of the contract.” The instruction further states Florida’s objective theory of contract to tell the jury that the parties’ intentions cannot be used to make this determination, only what the parties actually said or did. This is important because many practitioners still believe that Florida follows a subjective theory, or what the parties thought or intended.

Offer is the next instruction. It is given where there is documentary evidence or testimony that no offer was made. The instruction lists three requirements to prove that an offer was made: (1) One party has to communicate to the other that he or she is willing to ‘enter into a contract’ with the other party; (2) there has to be communication between the parties that includes the essential terms of the offer; and (3) if this offer is made, then one party must reasonably assume that if he or she accepted the offer a contract would result.

The next instruction is Revocation of Offer. It is only given if the defendant claims he or she revoked the offer before the claimant accepted it. The instruction gives three elements, any one of which the claimant must prove: (1) the “defendant did not withdraw the offer;” (2) “claimant accepted the offer before defendant withdrew it;” or (3) defendant never communicated withdrawing the offer. If the defendant denies accepting the offer, then the next instruction is given, Acceptance. This instruction is rooted in Florida case law and states that “an acceptance is not valid, and thus ineffective to form a contract, unless it is communicated to the offeror.” The claimant must prove that the defendant actually communicated “agreement to the terms of the offer” and that the agreement was to the original terms.” There is also Acceptance by Silence or Conduct. It recognizes the general rule that no response to an offer constitutes a rejection and that a claimant must prove that both parties “understood silence or inaction to mean that the offer was accepted.” This instruction is also rooted in case law.

Contract Interpretation

The instructions found in relation to use during the deliberation of contractual interpretation disputes include: Disputed Terms, Meaning of Ordinary Words, Meaning of Disputed Technical or Special Words, Construction of Contract as a Whole, Construction by Conduct, Reasonable Time, and Construction against Drafter.

Disputed Terms gives the jury the respective disputed terms of the contract and then tells the jury what each party believes the terms mean. The parties have to prove that their interpretation is correct and then the jury decides the terms’ meaning at the time the contract was made by looking at “the plain and ordinary meaning of the language used in the contract as well as the circumstances surrounding the making of the contract.” An additional instruction is allowed if the court decides the case requires the jury to use “other methods” to make the decision on the contract terms, and cites extensive case law in the notes. There are times when there are no ambiguities, and times when facts are in dispute and the case should be submitted to the jury, so these instructions help the court and counsel navigate these situations.

Meaning of Ordinary Words informs the jury that any disputed contract terms are read according to their “plain and ordinary meaning” and that the jury has the right, nevertheless, to conclude, “that the parties intended the disputed terms to have another meaning.” The instructions cite extensive case law to support. A sub-instruction, Meaning of Disputed Technical or Special Words, informs the jury that if the parties dispute the meaning of a technical term, the definition is determined by “the meaning used by people in that trade, business, or technical field,” and that the parties can decide that the technical terms have a different meaning.

Construction of Contract as a Whole directs the jury that they must concentrate on the whole contract when defining the terms. Construction by Conduct is provided to help the jury interpret contract terms by looking to the parties’ conduct both “before and after the contract.” When contracts to do not contain an end date, Reasonable Time is given. This instruction informs the jury that it has to decide if the party performed his or her part of the contract within a reasonable amount of time. This is a subjective standard. This instruction cites extensive case law for support.

Construction against Drafter is given to aid interpretation when the contract contains ambiguities. It instructs the jury that only after they have used all previous instructions to define the disputed terms can they “construe” the disputed terms against the party who “drafted” the contract. The committee was concerned that this instruction might cause the jury to place too much importance on it, so the committee strongly recommends that the court use 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.

Affirmative Defenses

Eleven instructions, in regards to Affirmative Defenses, are available for use prior to jury deliberation. Instructions include those in reference to: Mutual Mistake of Fact, Unilateral Mistake of Fact, Undue Influence, Fraud, Waiver, Novation, Statute of Limitations, Equitable Estoppel, Ratification, Negligent Misrepresentation, and Judicial Estoppel.

Mutual Mistake of Fact is given when the defendant requests the contract be set aside because the parties were mistaken about something, the defendant proves the mistake, and the defendant “did not bear the risk of mistake.” Before it is given, the court must first decide if it was a material mistake. If it is, the court gives the instruction to the jury. The court must also decide if the “contract unambiguously assigns the risk” of mistake to the defendant or if it is reasonable to assign to the defendant. If the court decides yes, the instruction is not given.

Unilateral Mistake of Fact is provided if the court decides there was a material unilateral mistake. Also, the court decides if the “contract unambiguously assigns the risk” of mistake to the defendant or, if it is reasonable to assign it to the defendant. If the judge decides the contract assigned the risk to the defendant, or that it is reasonable to assign the risk to the defendant, the instruction is not given. This instruction is given when the defendant wants the contract set aside because the defendant was “mistaken” about something. The defendant has to show that he or she was mistaken about something; that the claimant either caused or knew of the mistake, or that the contract is unconscionable with the mistake; and that the defendant did not bear the risk of the mistake. This is another instruction grounded in case law.

Undue Influence is given when the defendant claims that he or she only agreed to the contract because the claimant “unduly pressured” him or her, and, as such, the contract should be set aside. The defendant must prove that he or she would not have agreed to the contract if the claimant had not pressured him or her. It then provides specific ways pressure was given. The Fraud instruction requires the defendant to prove that the fraudulent statement the claimant made was material; claimant knew it was false; claimant made the statement to get defendant to agree to the contract; “defendant relied on the representation;” and defendant “would not have agreed to the contract” if he or she knew the statement was false. The instruction also requires the affirmative defense of fraud be pled correctly.

Waiver instructs the jury that the waiver can be oral, written, or stem from the parties’ conduct. The instruction then lists the elements of waiver: the claimant (1) had to know the allegedly waived right existed; (2) knew the defendant could have performed the waived right; and (3) freely and intentionally gave up the right. Novation is given when the defendant claims cancellation of the original contract and an agreement between the parties to substitute a new one. Statute of Limitations is given when the defendant claims that the action was not filed within the applicable statute of limitations period, which begins the date of the breach.

Equitable Estoppel provides that a defendant can use this defense if the claimant took a certain action, “spoke about” a fact, or “concealed or was silent about” a fact that he or she knew about, and the defendant relied on any of the above, resulting in the defendant changing his or her “position for the worse.” It further adds that, before the court can submit this instruction to the jury, the court has to determine that any of the above was material. Ratification is given when the defendant breached the contract by some act, and the claimant knew of the act and that he or she could “reject” the contract because of this act. However, the claimant accepted the act anyway and is bound by or “ratified” the contract.

Commercial and Contract Points of Law

There are nine jury instructions for Commercial and Contract Points of Law. Included in these instructions are Substantial Performance, Modification, Existence of Conditions Precedent Disputed, Occurrence of Agreed Condition Precedent, Breach of Implied Covenant of Good Faith and Fair Dealing, Goods Sold and Delivered, Open Account, Account Stated, and Money Had and Received.

Substantial Performance is given when one party claims that the other party failed to perform “all of the essential things which the contract required,” so that party was relieved of his or her obligations. The party has to prove: (1) that he or she “performed in good faith;” and (2) that the other party got substantially what was promised under the contract and denying payment in full was unreasonable. If any deduction in payment is needed, there is the capability to make a reduction in the damages section of the instructions.

Modification is provided when the claimant asserts that the original contract was modified, but the defendant denies that a modification occurred. Using a reasonable standard, the jury is told to look at the words and conduct of the parties to determine if the contract was modified and that the “contract in writing may be modified by a contract in writing, by a subsequent oral agreement between the parties, or by the parties’ subsequent conduct.” The instruction further provides that the parol evidence rule does not “bar evidence proving the [subsequent] oral modification of written contracts.”

Existence of Conditions Precedent Disputed is given when the defendant can show that he or she did not have a specific duty because the claimant did not comply with the condition precedent. The jury is told that if “both the existence and the occurrence of a condition precedent are disputed,” the defendant must “prove that the parties agreed to the condition” and, once this requirement is met, the claimant must show that he or she met the condition precedent. If the claimant fails, the defendant is otherwise not required to fulfill the specific duty.

Occurrence of Agreed Condition Precedent is given when the defendant asserts that in the contract, the parties agreed that defendant would not have a specific duty unless a certain condition precedent occurred. It is given only if “both the existence and the occurrence of a condition precedent are disputed.”

Breach of Implied Covenant of Good Faith and Fair Dealing defines good faith and fair dealing, tells the jury each parties’ duties, and instructs that the claimant asserts the defendant failed to act as this instruction requires. It sets forth elements that must be met to show that the defendant failed to act in good faith: (1) there was a contract; (2) claimant substantially completed the contract; (3) defendant was able to perform the contract; (4) defendant “unfairly interfered with [claimant’s] receipt of the contract’s benefits,” (5) defendant did not meet the “reasonable contract expectations;” and (6) claimant was harmed.

Goods sold and Delivered is provided where the claimant contends that he or she sold and delivered goods to the defendant and the defendant did not pay. The instruction requires that a claimant prove the sale, delivery, and nonpayment of the agreed upon price or the reasonable value of the goods. Open Account gives the jury the definition of “open account,” and is provided when the claimant states that the defendant owes him or her money because of the open account. The instruction states that the claimant must prove: (1) a transaction with the defendant; (2) that an “account existed;” (3) existence of an invoice; and (4) money owed on the account by defendant. Account Stated provides that the claimant has to prove: (1) the claimant and defendant had a transaction; (2) they agreed on the amount owed or that the claimant sent an invoice and the defendant did not timely object to the invoice; and (3) defendant “expressly or implicitly promised to pay,” but failed to pay any or all of the amount owed. Lastly, Money Had and Received requires a claimant prove that the defendant received money from a certain transaction and that “in all fairness” the defendant should refund the money.


There are eleven instructions on damages: Introduction to Contract Damages, Breach of Contract Damages, Compensatory Damages, Special Damages, Lost Profits, Damages for Complete Destruction of Business, Owner’s Damages for Breach of Contract to Construct Improvements on Real Property, Obligation to Pay Money Only, Buyer’s Damages for Breach of Contract for Sale of Real Property, Seller’s Damages for Breach of Contract to Purchase Real Property, Mitigation of Damages, Present Cash Value of Future Damages, and Nominal Damages.

Introduction to Contract Damages shortly introduces the concepts of contract damages that, year after year, confuse first year law students. Breach of Contract Damages succinctly explains compensatory damages and special damages. Lost Profits provides that for a claimant to recover lost profits, the claimant must prove it was the defendant that caused the claimant’s lost profits and the amount “with reasonable certainty.” It further defines what “reasonable certainty” is for the jury.

Damages for Complete Destruction of Business is provided only when there is a “complete destruction” of the claimant’s business. The jury is instructed that the claimant’s damages are based on the market value of the business and that anything less than “complete destruction” is reimbursed with the “lost profits” instruction, explained above.

Owner’s Damages for Breach of Contract to Construct Improvements on Real Property is provided in the two most common circumstances in which the instruction would be relevant. The first circumstance is when the defendant makes no claim that the claimant’s requested damages would “constitute unreasonable economic waste.” The claimant recovers the reasonable amount to complete the job after subtracting “the balance due under the contract.” The second circumstance is when the defendant states that a claimant’s requested damages “constitute unreasonable economic waste.” If the jury decides that there would be no “unreasonable economic waste,” damages are measured as described in the first circumstance. If the jury finds that the claimant’s damages would constitute “unreasonable economic waste,” however, damages are “the difference between the fair market value of the claimant’s real property as improved and its fair market value if the defendant had constructed the improvements in accordance with the contract, measured at the time of the breach.” This instruction is grounded in case law.

Seller’s Damages for Breach of Contract to Purchase Real Property is provided when the claimant, the seller of the real property, is damaged by the buyer’s breach of contract. The claimant must prove that he or she was willing to do everything required for the closing. Once the claimant makes this proof, he or she can recover damages. This instruction does not cover specific performance, and is not given if the contract contains liquidated damages language. Damages are “[t]he difference between the contract sales price and the fair market value of the property on the date of the breach, less any amount which the defendant previously paid,” as well as damages that were “contemplated” in the contract and “normally” occur during a breach of contract.

Mitigation of Damages is provided when the defendant asserts the correspondent affirmative defense. Since the defense does not apply in nonexclusive contracts cases, the instruction is used only for exclusive contracts. If the jury decides a defendant’s breach of contract resulted in damages, and that the clamant failed to exhaust reasonable efforts to avoid the damages, the claimant cannot recover damages the defendant proves the claimant failed to avoid. The instruction also gives the jury power to award claimant damages for the expenses incurred during those reasonable efforts. This is another instruction grounded in case law.

Lastly, Nominal Damages instructs the jury to award a nominal amount for the breach of contract even if the claimant did not prove damages.


Not only do these jury instructions provide the elements necessary to be proven or disproven, the instructions additionally provide legal support and discussion of applicable law. The instructions are both comprehensive and leave little to be updated later. The instructions assist juries, the bench, and the bar in understanding legal standards in these difficult and complicated areas of law. Furthermore, jury instructions are easily accessible and very user-friendly, and can be found on the Florida Supreme Court Website.

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