Download 416.23 Anticipatory Breach

416.23 ANTICIPATORY BREACH
(Claimant) claims that (defendant) anticipatorily breached the contract between the
parties.
To establish this claim, (claimant) must prove both of the following:
1. (Defendant) breached the contract by clearly and positively indicating, by words or
conduct, or both, that [he] [she] [it] would not or could not perform the contract; and
2. (Claimant) was willing and able to perform the contract at the time (defendant)
breached the contract.
SOURCES AND AUTHORITIES FOR 416.23
1. “Where performances are to be exchanged under an exchange of promises, one party’s
repudiation of a duty to render performance discharges the other party’s remaining duties to
render performance.” Hosp. Mortg. Grp. v. First Prudential Dev. Corp., 411 So.2d 181, 182
(Fla. 1982) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 253 (1979)).
2. “[R]epudiation may be evidenced by words or voluntary acts but the refusal must be
distinct, unequivocal, and absolute.” Mori v. Matsushita Elec. Corp. of Am., 380 So.2d 461, 463
(Fla. 3d DCA 1980).
3. “[T]he non-breaching party is required to plead and prove compliance with all conditions
precedent or the ability to comply if the performance has been excused by the repudiation.”
Hosp. Mortg. Grp., 411 So.2d at 183. But see Custer Med. Ctr. v. United Auto. Ins. Co., 62
So.3d 1086, 1096 (Fla. 2010) (“[A] defending party’s assertion that a plaintiff has failed to
satisfy conditions precedent necessary to trigger contractual duties under an existing agreement
is generally viewed as an affirmative defense, for which the defensive pleader has the burden of
pleading and persuasion.”); Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence
of conditions precedent, it is sufficient to aver generally that all conditions precedent have been
performed or have occurred. A denial of performance or occurrence shall be made specifically
and with particularity.”).