CACI No. 328

Care—Essential Factual Elements

The parties’ contract requires that [name of defendant] [specify

performance alleged to have been done negligently, e.g., install cable

television service]. It is implied in the contract that this performance will

be done competently and with reasonable care. [Name of plaintiff] claims

that [name of defendant] breached this implied condition. To establish this

claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] entered into a

contract;

[2. That [name of plaintiff] did all, or substantially all of the

significant things that the contract required [him/her/ nonbinary

pronoun/it] to do;]

[or]

[2. That [name of plaintiff] was excused from having to [specify things

that plaintiff did not do, e.g., obtain a guarantor on the contract];]

[3. That [specify occurrence of all conditions required by the contract

for [name of defendant]’s performance, e.g., the property was

rezoned for residential use];]

[or]

[3. That [specify condition(s) that did not occur] [was/were] [waived/

excused];]

4. That [name of defendant] failed to use reasonable care in [specify

performance]; and

5. That [name of plaintiff] was harmed by [name of defendant]’s

conduct.

New June 2015