Someone breached your contract. What are your options?

By: Kelsey Black
: 4 Minutes to Read

A breach of contract is the failure of any party to fulfil the terms of a contract without a lawful excuse. However, not every breach is created equal. In most cases, if you want to move forward with a breach of contract suit in Florida, the breach must be material.

The pandemic has a lot of companies trying to get out of contracts. In Florida, if you are combing over your contract to see if the other side is in breach, you need to remember that you must be able to demonstrate that the breach is material. And, of course, the breach must have caused damages.

The difference between a regular breach and a material breach is, well, material.

Causation requires that a loss “ordinarily follows the breach of such contract in the usual course of events, or that reasonable person in the position of the parties would have foreseen as a probable result of the breach.” Materiality, however, requires proof that the breach goes to the essence of the contract. A material breach excuses all future performance. A regular breach permits only the recovery of damages.

Where does this leave business owners?

You have a contract that has been breached, the breach is annoying, but it doesn’t necessarily go to the essence of the contract. What should you do? The obvious is speak to the other side and start documenting your case over time as to why the breach is material and goes to the essence. The more you put it in writing, the more a court might agree with you. Another option is to review your contract for dispute resolution proceedings. If you a pre-suit mediation requirement, use it. Just because a lawyer told you that the breach might not be material does not mean the other side can avoid presuit mediation if your contract requires it.

Presuit Mediation

Presuit Mediation is a process where a neutral third party called a mediator (typically a lawyer) acts to assist both sides in reaching an agreement over whatever dispute brought them to the mediator. The ultimate decision-making on any issue is always left to the parties, but mediators can help parties identify issues, foster problem-solving and explore settlement ideas. Mediation is fast. It can be scheduled quickly.

It takes place in 1-2 days. Your results can almost be immediate, if you reach an agreement. It is also cheap. It is not free, but obviates the need for a court case, if successful and prolonged exposure to attorney fees. It is also informal. Nowadays, it is done via Zoom. Even if it is in person, it is in a lawyer or mediator’s conference room, with a never-ending supply of coffee, soda, lunch, etc. It is less cumbersome and stuffy than the courtroom.

In addition, a client is an active participant in the process. You make offers, you interface directly with the mediator, and ultimately, you have control over the outcome. You get to tell your story. And the best part, it is entirely confidential. Trials are public. Presuit mediations are private. Review your contract and see if you have a presuit mediation provision for resolving disputes. Even if you do not have one, the other side might just agree to participate anyway. It a much cheaper alternative to being sued.

In sum, Florida’s contract law, as it sits now, is the only state that does not allow for recovery in a regular breach of contract case (unless your contract states otherwise). Most courts in Florida require a material breach in order for you to bring a breach of contract case. Thus, if the breach you have identified is not material, explore presuit mediation or discuss ways with your lawyer to start documenting why the non-material breach could become material.

If you have a small or mid-sized business with legal issues to resolve, you need lawyers and legal professionals who thrive on delivering better results than anyone thought possible. Black Law P.A. is dedicated to the clients we serve any time of day. We take the stress out of the process so you can focus on running your business optimally. We are dedicated to keeping you fully

informed and up to date on your case while striving for the best outcome. Contact us online today or call us at 954-320-6220.