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Author Topic: Contracts  (Read 4180 times)
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« on: December 08, 2006, 12:42:02 PM »

Contracts     Fla Jur 2d   pocket parts  

ASSENT, OFFER AND ACCEPTANCE
s.19 Necessity of mutual assent
An objective test is utilized to determine whether a contract is enforceable.
King v. Bray, 867 So.2d 1224 (Fla. 5th DCA 2004)

Acceptance
Absolute or conditional acceptance; variation from offer
The alteration of one of the material terms of a contract constitutes a counter-offer and rejection of said contract.
L.P. v. Baldwin, 885 So.2d 881 (Fla. 3rd DCA 2004), reh’g and reh’g en banc denied, (Nov. 17, 2004).

CONSTRUCTION AND EFFECT
A, GENERAL RULES OF CONSTRUCTION
s.137 Generally
Cases
The parties are bound by the unambiguous terms of their contract.
Chrysler Realty Corp. v. Davis, 877 So.2d 903 (Fla. 4th DCA 2004), reh’g granted, (July 21, 2004)

Florida’s implied covenant of good faith and fair dealing is gap-filling default rule, it is usually raised when a question is not resolved by the terms of a contract or when one party has the power to make a discretionary decision without defined standards.
Publix Super Markets, Inc. v. Wilder Corp. of Delaware, 876 So.2d 652 (Fla. 2nd DCA 2004).

s.138 Construction as function of court
Cases
If the terms of contract are clear and unambiguous, their interpretation presents a question of law for determination by the court.
Wagner v. Wagner, 885 So.2d 488 (Fla. 1st DCA 2004)

A court must interpret a contract as a matter of law.
Morgan v. Herff Jones, Inc., 883 So.2d 309 (Fla. 2nd DCA 2004)

Because contract construction is a question of law, the appellate court need not defer to the trial court’s construction.
Garcia v. Tarmac American Inc., 880 So.2d  807 (Fla. 5th DCA 2004)

s.140 Reasonable construction
Cases

If language of contract is contradictory, obscure, or ambiguous or where its meaning is doubtful so that it is susceptible of two constructions, one of which makes it fair. customary, and such as a prudent man would be naturally execute, while the other interpretation would make it inequitable, unnatural, or such as a reasonable man would not be likely to enter into, then courts will approve reasonable, logical, and rational interpretation.
Huntington on the Green Condominium v. Lemon Tree I-Condominium, 874 So.2d 1
(Fla. 5th DCA 2004), reh’g denied, (June 1, 2004)

If one interpretation of contract would lead to absurd conclusion, then such interpretation should be abandoned and one adopted which would accord with reason and probability.
Huntington on the Green Condominium v. Lemon Tree I-Condominium, 874 So.2d 1
(Fla. 5th DCA 2004), reh’g denied, (June 1, 2004)

Looking to the other provisions of a contract and to its general scope, if one construction would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability.
Specialized Machinery Transport, Inc. v. Westphal, 872 So.2d 424 (Fla. 5th DCA 2004)

Where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner.
King v. Bray, 867 So.2d 1224 (Fla. 5th DCA 2004).

A court must construe a contract in a manner that accords with reason and probability and avoid an absurd construction.
Kipp v. Kipp, 844 So.2d 691 (Fla. 4th DCA 2003)

s.142 Construction against party drafting contract
Cases

Rules on construction require that contracts be construed against the drafter.
Vargas v. Schweitzer-Ramras, 878 So.2d 415  (Fla. 3rd DCA 2004), reh’g denied, (Aug. 4, 2004).

Intention of Parties
s.143 Generally
Cases
Where there are no standards for exercising discretion, the implied covenant of good faith protects contracting parties’ reasonable commercial expectations.
Publix Super Markets, Inc. v. Wilder Corp. of Delaware, 876 So.2d 652 (Fla. 2nd DCA 2004)

s.144 Language used in contract

The language used in a contract is the best evidence of the intent and meaning of the parties.
M-I LLC v. Utility Directional Drilling, Inc., 872 So.2d 403 (Fla. 3rd DCA 2004)

s. 145 Subject matter, nature, and object of contract

When interpreting a contract, words should be given their natural meaning, or meaning most commonly understood in relation to subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable.
Golf Scoring Systems Unlimited, Inc. v. Remedio, 877 So.2d 827 (Fla. 4th DCA 2004)

s. 144 Surrounding circumstances

Courts interpreting contracts should place themselves, as near as possible, in exact situation of parties to instrument when executed, so as to determine intention of the parties, objects to be accomplished, obligations created, time of performance, duration, mutuality, and other essential features.
Condition and circumstances surrounding parties to contract and object or objects to be obtained when contract was executed should be considered when interpreting contract.
Huntington on the Green Condominium, 874 So.2d 1 (Fla. 5th DCA 2004), reh’g denied, (June 1, 2004).

s. 149 Surrounding circumstances – past conduct
Cases
Under Florida law, if no reasonable consistent construction can be drawn between course of dealing and terms of written agreement, the express terms of the agreement must be control.
Excess Risk Underwriters, Inc. v. Lafayette Life Ins. Co., 328 F. Supp.2d (S.D> Fla. 2004)


No intention regarding the circumstances of a closed, charge-off, sold account!!!!


s. 150 Interpretation by parties; practical construction
Cases
Where an agreement is ambiguous, meaning of the agreement may be ascertained by looking to interpretation that parties have given agreement and parties’ conduct throughout their course of dealings.
Rafael J. Roca, P.A. v. Lytal & Reiter, Clark, Roca, Fountain, & Williams, 856 So.2d 1 (Fla. 4th DCA 2003), reh’g denied, (Oct. 30, 2003).

Language of Contract
s.152 When construction is necessary or permissible – clear and unambiguous language\
Cases

When the terms of contract are clear and unambiguous, the contracting parties are bound by those terms.
Morgan v. Herff Jones, Inc., 883 So.2d 309 (Fla. 2nd DCA 2004)

In reviewing the trial court’s construction of a contract, the appellate court is guided first by the language of the contract itself, and where the contract is clear and unambiguous there is not reason to go further.
Garcia v. Tarmac American, Inc., 880 So.2d 807 (Fla. 5th DCA 2004).

Contract language must be given its plain meaning.
Waksman Enterprises, Inc. v. Oregon Properties, Inc., 862 So.2d 35 (Fla. 2nd DCA 2003)

 s.153 Meaning of words or phrases; ordinary meaning

Under Florida law, “whereas” clauses are not binding when a contract is otherwise unambiguous; they are merely prefatory recitations of the facts that lead the parties to enter the agreement.
Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067 (11th Cir. 2003)

When interpreting contract, words should be given their natural meaning, or meaning most commonly understood in relation to subject matter and circumstances, and reasonable construction is preferred to one that is unreasonable.
When interpreting contract, court should give effect to plain and ordinary meaning of its terms.
Gulf Scoring Systems Unlimited, Inc. v. Remedio, 877 So.2d 827 (Fla. 4th DCA 2004)

If ambiguous, the words of the contract should be given their plain and ordinary meaning.
Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003), reh’g denied, (Feb 23, 2004)

s.157 Ambiguous language

When an ambiguity exists in contract and the parties’ intent can be resolved only by resort to conflicting extrinsic evidence, a question of fact is presented, which must be resolved by the trier of fact.
Wagner v. Wagner, 885 So.2d 488 (Fla. 1st DCA 2004)

Contractual language is ambiguous where it is susceptible of interpretation in opposite ways.
King v. Bray, 867 So.2d 1224 (Fla. 5th DCA 2004)

Language in a document is “ambiguous” when it is uncertain in meaning and may be fairly understood in more ways than one and is susceptible of interpretation in opposite ways.
Barnett v. Destiny Owners Ass’n, Inc., 856 So.2d 1090 (Fla. 1st DCA 2003).

s.158 Conflicting or repugnant provisions

If clauses in contract appear to be repugnant to each other, they must be given such interpretation and construction as will reconcile them if possible.
Huntington on the Green Condominium v. Lemon Tree I-Condominium, 874 So.2d 1 (Fla. 5th DCA 2004), reh’g denied, (June 1, 2004)

Where one or more provisions of a contract appear to be in conflict, those provisions should be harmonized and reconciled if it is possible to do so.
Fayad v. Clarendon Nat. Ins. Co., 857 So.2d 293 (Fla. 3rd DCA 2003)

s.161 Construction as a whole

Courts must construe contracts in such a way as to give reasonable meaning to all provisions, rather than leaving part of the contract useless.
Publix Super Markets, Inc. v. Wilder Corp. of Delaware, 876 So.2d 652 (Fla. 2nd DCA 2004)

Contract should be considered as a whole in determining intention of parties to instrument.
Huntington on the Green Condominium v. Lemon Tree I-Condominium, 874 So.2d 1 (Fla. 5th DCA 2004), reh’g denied, (June 1, 2004)

Meaning of contract is not to be gathered from any one phrase, but from a general view of the whole writing, with all of its parts being compared, used, and construed, each with reference to the others.
Specialized Machinery Transport, Inc. v. Westphal, 872 So.2d 424 (Fla. 5th DCA 2004)

Intention of contracting parties must be determined from an examination of the entire contract and not from separate phrases or paragraphs.
Specialized Machinery Transport, Inc. v. Westphal, 872 So.2d 424 (Fla. 5th DCA 2004)

Where the contract is susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions.
Paladyne Corp. v. Weindruch, 867 So.2d 630 (Fla. 5th DCA 2004)

A contract should be reviewed as a whole and all language given effect, and where the language is clear and unambiguous, the contract should be enforced as it reads.
Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003), reh’g denied, (Feb 23, 2004)

Courts are required to read provisions of contract harmoniously in order to give effect to all portions thereof.
Waksman Enterprises, Inc. v. Oregon Properties, Inc., 862 So.2d 35 (Fla. 2nd DCA 2003)

Where a contract is susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions.
Kipp v. Kipp, 844 So.2d 691 (Fla. 4th DCA 2003)
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