The email arrives six weeks before the delivery date. "Due to changed circumstances, our company cannot fulfill the order at the agreed pricing." Or it comes from a buyer: "We have decided to go in a different direction." Nothing is late yet. No payment has been missed and no deadline has passed. But you have turned away other work, ordered materials, and planned the quarter around a contract the other side has just told you it does not intend to honor.
Florida law does not require you to wait for the due date and watch the breach happen. It also does not allow you to treat every sign of reluctance as the end of the deal. The space between those two rules is where businesses lose claims they should have kept, usually in the first week and usually by reacting before they understood their position.
What counts as a repudiation?
Florida courts require a distinct, unequivocal, and absolute refusal to perform. The refusal can be stated in words, or it can be shown by conduct that makes performance impossible, such as selling the promised property to someone else. Expressions of doubt do not qualify. Neither do complaints, requests to renegotiate, or a statement that performance may be difficult. A party that says it will perform only if you agree to new terms it has no right to demand, such as a higher price, has generally repudiated. So has a party that announces it is closing the business, or that has transferred the assets it needs in order to perform. The exact words matter, which is why the message should be preserved and read carefully before anyone replies.
Do you have to wait until performance is due?
No. A true repudiation gives the other party an immediate claim. You may treat the contract as breached, stop your own performance, and sue without waiting for the date. You may also choose to wait a reasonable time and urge the other side to perform. Either way, a repudiation excuses you from continuing your own performance and from conditions you would otherwise have had to satisfy. You should still expect to show that you were ready, willing, and able to perform your side had the contract gone forward. A seller who could not have delivered, or a buyer who could not have paid, has a much weaker claim. The choice between suing now and waiting is strategic, and it should be made deliberately instead of by default.
What if you are not sure they mean it?
Ask, in writing. For contracts involving the sale of goods, Florida's commercial code provides a specific tool. When reasonable grounds for insecurity arise, a party may demand adequate assurance of performance in writing and, where commercially reasonable, suspend its own performance until the assurance arrives. If no adequate assurance is given within a reasonable time, not exceeding thirty days, the silence is itself a repudiation. Outside the sale of goods the rule is less formal, but the same letter serves the same purpose. A clear request and the answer to it turn an ambiguous situation into evidence.
Can the other side take it back?
Yes, for a time. A party that has repudiated may retract and reinstate the contract until the other party has materially changed its position in reliance on the repudiation or has said that it considers the repudiation final. That rule has a practical consequence. If you intend to treat the contract as ended, say so in writing and promptly. If you stay silent, the other side may withdraw its refusal the week after you have committed to a replacement, and you may find yourself bound to two contracts.
What mistakes turn the innocent party into the breaching one?
The first is overreaction. If the other side's statement was not a true repudiation and you stopped performing, you may have committed the first material breach yourself. The second is ignoring the contract's own procedures: notice provisions, cure periods, and termination clauses often still apply, and skipping them hands the other side an argument. The third is failing to limit the loss. After a clear repudiation you cannot keep performing and add the cost to the bill, and you are expected to take reasonable steps to reduce the damage, such as reselling the goods, finding a substitute supplier, or filling the time with other work. Losses that reasonable effort would have avoided are not recoverable.
What can you recover?
The value of the bargain. For a seller, that is typically the difference between the contract price and what the goods or services brought on resale, plus incidental costs. For a buyer, it is the added cost of obtaining a substitute. Lost profits are recoverable when they can be proven with reasonable certainty, and expenses saved because the contract ended are deducted. Deposits and advance payments are accounted for. Contracts for real estate and other unique property may support an order compelling performance. A contract may also fix the remedy in advance through a liquidated damages clause, which Florida enforces when the amount is a reasonable forecast and not a penalty. Attorney's fees depend on the contract or a statute, and interest runs from the date of the loss.
How long do you have, and what should you do this week?
Florida allows five years to sue on a written contract and four on an oral one. When the period begins after a repudiation can be disputed, so count from the day of the repudiation. This week, save the message and everything around it. Do not answer in anger. Reread the contract for its notice, cure, termination, dispute resolution, and fee provisions. Send a written response that states your position, or demands assurance, as the situation requires. Document your own readiness to perform. Begin limiting the loss and keep records of every step, because those records become the damages case.
Salomon Smith PLLC represents businesses in breach of contract disputes across South Florida, including contracts abandoned before performance was due. If the other side has told you it will not perform, call (305) 297-1018 for a free consultation, or learn more about our breach of contract practice.
This article is for general informational purposes only and is not legal advice.