Legal Memorandum: Substantial Performance of a Contract in FL

Issue: What is substantial performance of a contract under Florida law?

          Under Florida law the question of whether a party has substantially performed or materially breached a contract is one of fact based on all relevant evidence.  In re Sunshine-Jr. Stores, Inc., 240 B.R. 788 (Bankr. M.D. Fla. 1999).  Also See Fed. R. Civ. P 52(a).

Substantial performance is that performance of a contract which, while not full performance, is so nearly equivalent to what was bargained for that it would be unreasonable to deny the substantially performing party the full contract price, less the damages, if any, the other party incurred due to failure of full performance.  Ocean Reef Club, Inc. v. UOP, Inc., 554 F. Supp. 123, 132 (S.D. Fla. 1982).  Put another way, “an immaterial deviation from a contract is insufficient to justify a termination of the contract.”  In re Braniff, Inc., 118 B.R. 819, 841 (Bankr. M.D. Fla. 1989).

“The law is clear that repudiation of a contract relieves the nonbreaching party of its duty to tender performance and gives rise to a claim for damages.”  Gaylis v. Caminis, 445 So. 2d 1063, 1064 (Fla. 3d Dist. Ct. App. 1984).  Thus, for example, where the parties agreed that a contractor was to furnish a performance bond but before that was required the other party announced it had no agreement, the latter’s repudiation excused the contractor’s failure to obtain the performance bond and the contractor could sue for breach.  Terra Group, Inc. v. Sandefur Management, Inc.,