Establishing a Breach of Contract without a “Time is of the Essence” Clause

Generally, for a person to recover damages under a theory of breach of contract, that person has to prove that the other party committed a “material” breach of a contract causing damages to the plaintiff.  Normally, a failure to perform a certain important task before a required contractual deadline would constitute a material breach if the contract states that “time is of the essence”.  However, many people write their own contracts without the assistance of a lawyer or have no written contract at all.  The result is that the contract may not contain the necessary terms to establish that time is of the essence or the contract does not state a time for completion of performance by the other person.

So what happens if performance does not occur for a long time but there is no deadline in the contract?  Can the non-performing party be held in breach?

Yes.  Under Florida law, time is considered to be “of the essence” in numerous alternative circumstances, other than an express recital in the contract: “…such that a delay in performance would constitute a material breach when one of the following circumstances exist …where it can be determined from the subject matter of the contract that time was clearly an essential and vital part of the bargain [or] where the treatment of time as nonessential would produce a hardship to the non-faulting party [or] where notice has been given to the defaulting party that the contract be performed within a stated time, which must be reasonable according to the circumstances.”

11 Fla. Jur. 2d Contracts §184 citing Centurion Air Cargo, Inc. v. United Parcel Services Co., 420 F.3d 1146 (11th Cir. 2005); Brookworld Trade, Inc. v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350.

So, even if your contract is silent as to the necessary language, its best to have a Florida Business Litigation Attorney review your contract and counsel you through alternative approaches to establishing a breach of contract.