Fla. Std. Jury Instr. (Contract & Bus.) 416.53

Defendant has raised the defense of impossibility of performance. To establish this defense, defendant must prove the following:

The parties bargained for [purposes of contract];

1. [Reason] made it actually impossible for Defendant to perform the purposes of the contract; and

2. The [reason] was not foreseeable when the bargain was made.

A contract is not invalid, and the defendant is not discharged from the contract, merely because the contract is difficult or burdensome to perform.

SOURCES AND AUTHORITIES FOR 416.53

1. In Re: Cinemex USA Real Estate Holdings, Inc., 627 B.R. 693 (S.D. Fla. 2021)

2. “As a general rule, a contract is not invalid, nor is the obligor discharged from its binding effect, because the contract turns out to be difficult or burdensome to perform.” Home Design Ctr.—Joint Venture v. Cnty. Appliances of Naples, Inc., 563 So. 2d 767, 769-70 (Fla. 2d DCA 1990).

3. “Where a business risk was foreseeable at the inception of the parties’ agreement, ‘there exists an inference that the risk was either allocated by the contract or was assumed by the party.’” Vereit Real Estate, L.P. v. Fitness International, LLC, 365 So.3d 442, 449 (Fla. 3d DCA 2023).

4. The defense of impossibility of performance is grounded in equity. See generally Vereit Real Estate, 365 So.3d 442. However, breach of contract is a legal claim subject to a jury trial. When impossibility of performance is raised as a defense to a breach of contract claim, it appears to fall within the rule stated in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510–11, 79 S. Ct. 948, 956, 957, 3 L.Ed.2d 988 (1959): “where both legal and equitable issues are presented in a single case ‘only under the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.’” See also Cerrito v. Kovitch, 457 So.2d 1021, 1022 (Fla. 1984). It therefore appears that the factual issues may be decided by a jury. “Where a dispute between two parties involves matters of both law and equity, it is within the trial court’s discretion to present the ‘mixed’ issues to a jury for resolution of the factual disputes, or to sever the issues.” Smith v. Orange Cnty., 497 So. 2d 985, 986 (Fla. 5th DCA 1986). This instruction provides a framework for the jury to decide the factual issues related to the elements of the defense. Whether the jury would decide if the defense applies, or whether the judge would have discretion to allow the jury to make only the findings of fact, reserving the ultimate equitable decision for the judge, is not resolved by this instruction. See Cinemex, 627 B.R. at 701. Pending further developments in the law regarding what issues should be decided by the jury, the Committee provides no model verdict form for this defense.

(Adopted June 25, 2025)

451 FIDUCIARY DUTY