MIAMI BUSINESS LITIGATION: UNWRITTEN CONTRACTS

Most breach of contract lawsuits involve a written contract. However, contracts do not have to be in writing to be enforceable. Many contracts can also be oral or implied through the parties’ course of conduct. To establish a breach of contract claim, one must only prove the existence of a valid and enforceable contract between the parties, a breach of that contract and resulting damages. Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949 (Fla. 3d DCA 2017) (providing the elements of a breach of contract claim). Therefore, it is incumbent on the party seeking recovery to demonstrate the existence of a contract regardless of its format. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Oral contracts are contracts. Koechli v. BIP Int’l, Inc., 870 So. 2d 940 (Fla. 1st DCA 2004) (“Florida law recognizes that contracts may be validly formed without an express written agreement.”). Consequently, oral contracts are subject to the same basic contract principles governing written contracts. St. Joe Corporation v. McIver, 875 So. 2d 375 (Fla. 2004). This means oral contracts arise when there are an offer, acceptance, consideration, and sufficient specification of essential terms. Riti Fin., LLC v. Patel, 386 So. 3d 1058 (Fla. 5th DCA 2024) (“Oral contracts are subject to the same “basic” formation requirements as written contracts, namely, “offer, acceptance, consideration and sufficient specification of essential terms.”). Establishing these components can be difficult because no writing memorializes all the contract’s terms. Courts can be skeptical of oral contracts as a result, so litigants should be prepared to establish their existence by a preponderance of the evidence. Solnes v. Wallis & Wallis, P.A., 15 F. Supp. 3d 1258 (S.D. Fla. 2014).

Contracts implied in fact are also enforceable. This type of contract “is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383 (Fla. 4th DCA 1997). “The only distinction between an express and implied-in-fact contract is the manner in which the parties’ assent is manifested or proven.” Baron v. Osman, 39 So. 3d 449 (Fla. 5th DCA 2010). A “contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Commerce, 695 So. 2d at 383. For example, a contract implied in fact can arise when a person performs services at another’s request or when “services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid.”

Florida’s legislature requires some contracts to be in writing even though the common law discussed above allows contracts to be oral or implied in fact. Florida’s statute of frauds requires agreements pertaining to certain subject matters including those identified below to be in a writing signed by the obligor:

• a promise to answer for the debt, default, or miscarriage of another;
• an agreement for the sale of lands, tenements, or hereditaments, or any lease of them for a period longer than one year; and
• an agreement that cannot be performed within one year from making it

Fla. Stat. § 725.01. Florida’s legislature also requires restrictive covenants like non-compete agreement, non-solicitation agreements, and non-disclosure agreements to be in writing. Fla. Stat. § 542.335.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.