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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.”).