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Orlando - Central Florida

Breach of Contract - Possible Defenses

If you're sued for breach of contract in Florida, you need to raise all applicable affirmative defenses. Regardless of whether a present duty to perform exists or has been satisfied or excused, it is important to ascertain viable defenses to performance that can discharge the party's obligations. Here we are not concerned if there are defenses to contract, but only if there exists a defense to performance. Some of these defenses are intended herein only to provide a basic understanding of how the process works. These defenses are as follows:

  1. Impossibility of performance, meaning nobody could perform according to the terms of the contract arising after the contract was entered into. If the impossibility already existed when the contract was formed, this is a contract formation matter (such as mistake, death, physical incapacity or supervening illegality).
  2. Impracticability, which depending on the jurisdiction, may require a major change in circumstances and extreme and unreasonably difficulty. Note that if the transaction involves a sale of goods, and a situation occurs where its nonoccurrence was a basic assumption, unforeseeable at the time the contract was made, a performance obligation may be discharged. A frustration of buyer's primary purpose should also be considered as an excuse to performance.
  3. Destruction of the main or primary subject matter that is necessary to fulfill the contract may also discharge a party's performance obligation as long as promisor was not at fault and it remains truly impossible to fulfill the terms of the contract at any price. While substantial damage to the subject matter of the contract may be enough, it is important to consider the case law of your state to determine the precise rules. In addition, when dealing with a destruction of a real estate property, it is important to distinguish between a contract to build (which may not discharge performance) and a contract to repair (where performance obligation may be discharged). In a situation involving the sale of goods under the Uniform Commercial Code, if the seller assumes the risk of loss, the seller may be required to provide new goods to the buyer for no additional cost or be held liable to the buyer for breach of contract. On the other hand, if the buyer bears the risk of loss, the buyer may still need to pay seller the full contract price. While there are many exceptions to these rules, to be able to render a good legal advice, your business attorney should among other matters, carefully ascertain the governing contract between the parties, determine if a carrier is involved, ascertain if the goods have been identified and abide with the contract laws of the applicable jurisdiction.
  4. Discharge based on a modification agreement (absent certain exceptions) replaces an existing contract in effect, thereby discharging any pre-existing duties under the existing contract.
  5. Other defenses to performance may include rescission of the contract between the parties, discharge by release, discharge by novation (when a new contract discharges the old contract by substituting a new party to receive benefits and assume duties originally belonging to one of the original parties under the old contract), discharge by operation of law (such as bankruptcy) and discharge by lapse (occurs most often when each party's duty is a condition concurrent to the duty of the other and at the time of performance, neither performs). 

Experienced Orlando Breach of Contract Attorney

If you or your business has been sued for breach of contract in Orlando or anywhere in Central Florida, it is highly recommended that you contact an experienced business attorney, who will provide the needed guidance to defend a lawsuit and who will ensure that your interests are properly protected. Our Central Florida breach of contract attorney can be reached by calling (407) 205-2330. You may also fill out the online form and our Orlando business lawyer will contact you shortly. We have helped many businesses in the past navigate through this maze and would be honored to help you too! We value your privacy and will keep any information you provide strictly confidential.


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390 N. Orange Ave, Suite 2300, Orlando FL 32801 * Main Phone: (407) 205-2330 * Direct Phone: (407) 205-2330 * Fax: (407) 442-0679

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