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Your Guide To Anticipatory Contract Breaches In Florida

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Contracts are at the foundation of most important commercial relationships. When businesses sign contracts, both parties reasonably expect that the other will abide by the terms of the agreement. If a breach occurs, the non-breaching party can bring a claim. It is possible for a breach of contract to happen before the actual date of performance. This is known as an anticipatory breach or an anticipatory repudiation. Here, our Miami contract dispute attorney provides an in-depth guide to anticipatory breaches of contract in Florida.

Anticipatory Breach of Contract: A Repudiation of the Agreement 

An anticipatory breach of contract occurs when an agreement is breached (violated) before the performance is actually due. An anticipatory breach of a contract can happen in two different ways:

  1. The Breaching Party Provides Clear Intent: A party to an agreement can anticipatorily repudiate the contract. In effect, this means that they clearly express their intent to violate the agreement. The intent can be expressed either verbally or in writing—but it must be clear and unequivocal.
  2. The Breaching Party Makes Performance Impossible: An anticipatory breach can also happen without actual notice in Florida. If the breaching party takes action that makes performance impossible—for example, by selling property that was covered by the agreement―that action can constitute an anticipatory breach.

Know the Rights of the Non-Breaching Party in Florida 

When an anticipatory breach of contract occurs, the non-breaching party has important legal rights. An anticipatory repudiation of an agreement is not a legal defense against a breach of contract claim. The non-breaching party retains the right to pursue damages. Under Florida law (Florida Statutes § 672.610), the non-breaching has the following three options:

  1. They can make a commercially reasonable period of time to see if the breaching party will change its position and perform to the terms of the agreement;
  2. They can file an immediate breach of contract claim; and
  3. They can suspend their own performance of the contract to account for the anticipatory breach. 

Understanding the Duty to Mitigate Damage

The non-breaching party is obligated to mitigate their damage from the moment that they become aware of a breach of contract, including an anticipatory reputation of the agreement. As defined by the Legal Information Institute, a duty to mitigate is defined as the responsibility of the wronged party to “to make reasonable efforts to limit the resulting harm.” When a party fails to properly mitigate its damages, it may be limited in the amount it can recover through a breach of contract claim.

Contact Our Miami, FL Commercial Litigation Attorney Today 

At Alhalel Law, our Miami business litigation lawyer has extensive experience handling complex contract disputes. If you have any questions about anticipatory contract breaches, we can help. Give us a call now or contact us online to schedule your fully confidential initial appointment with an attorney. From our office in Aventura, we provide business litigation representation in Miami and throughout South Florida, including Miami-Dade County, Broward County, and Palm Beach County.

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