Waiver, Prevention of Performance, and Impossibility in Florida Contract Law
Contract law recognizes certain doctrines that may excuse performance under specific circumstances. These include waiver, prevention of performance, and impossibility of performance. Understanding these defenses can help businesses and individuals protect themselves when obligations become impossible, pointless, or waived.
Waiver in Florida Contract Law
What Is Waiver?
A waiver is the intentional giving up of a legal right. In contracts, waiver can excuse a party’s failure to perform obligations. In Florida, even a condition precedent may be waived. This means a party can agree not to enforce a condition, even if it was not met.
Example: A buyer must secure financing before closing on property. If the buyer fails to secure financing, the seller may waive this condition and allow the closing to proceed.
Types of Waiver
- Express Waiver: Clearly stated, either orally or in writing.
- Implied Waiver: Shown through conduct or actions. For instance, if a party accepts performance that differs from the contract, it may be deemed an implied waiver of strict performance.
Effect of Waiver
Once waived, a right cannot be reinstated. The party who waived it cannot later sue for breach of that waived obligation.
Exceptions:
- Essential conditions cannot be waived.
- Waivers must be made knowingly and voluntarily.
Example: A contract requires project completion by January 1. On December 31, the contractor informs the owner that work will be delayed. If the owner agrees to extend the deadline, this is an implied waiver of strict compliance.
Prevention of Performance
When one party hires another, they implicitly agree not to obstruct performance. The hiring party must cooperate to allow completion.
If the hiring party obstructs work, the performing party may:
- Terminate the contract.
- Sue for damages due to breach of the implied cooperation clause.
Case Example: In a commercial real estate agreement, the lessor agreed to pay commission only upon lease execution. Even if the lessor unreasonably refused to lease, the broker could not claim a commission because the contract explicitly tied commission to an executed lease.
Impossibility of Performance
Definition
The doctrine of impossibility of performance excuses obligations when performance is literally impossible due to unforeseen circumstances.
Case Law: In Ashraf v. Swire Pac. Holdings, Inc., 752 F. Supp. 2d 1266 (S.D. Fla. 2009), impossibility was defined as factual situations where performance becomes impossible without fault of either party.
Examples of Impossibility
- A contract requires delivery of goods destroyed in a fire.
- A performer becomes gravely ill before a scheduled concert.
- Land promised for construction is later discovered to be underwater.
Frustration of Purpose
Frustration arises when the purpose of the contract becomes impossible or pointless, even if performance is technically possible.
Examples:
- Tickets sold for a concert that is later canceled.
- A service contract rendered meaningless because the underlying event no longer exists.
When frustration occurs, parties are excused from obligations, and neither can sue for breach.
Why You Need a Contract Attorney
These doctrines—waiver, prevention of performance, impossibility, and frustration—are complex and fact-specific. An experienced Florida contract attorney can:
- Determine whether performance obligations can be excused.
- Protect your rights in disputes.
- Negotiate contract modifications or settlements.
- Represent you in litigation if necessary.
If you have questions about waiver, prevention of performance, or impossibility, seek legal guidance.
FAQs About Waiver and Impossibility in Florida Contract Law
1. What is a waiver in Florida contract law?
A waiver is the intentional relinquishment of a legal right, which may excuse performance under a contract.
2. Can a condition precedent be waived?
Yes. Even essential conditions can be waived in Florida, but only knowingly and voluntarily.
3. What is prevention of performance?
It occurs when one party obstructs the other’s ability to perform. The obstructed party may terminate the contract and sue for damages.
4. What is impossibility of performance?
It refers to situations where unforeseen events make contract performance literally impossible, such as destruction of goods or serious illness.
5. How is frustration of purpose different from impossibility?
Impossibility makes performance physically or legally impossible. Frustration of purpose makes performance meaningless because the contract’s purpose no longer exists.
6. Should I consult a lawyer if performance becomes impossible?
Yes. A contract attorney can analyze your case, determine applicable defenses, and protect you in court.
For further reading, visit the Legal Information Institute – Contracts.