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Ray
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Experience:  29 years in civil, probate, real estate, elder law
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a motion to dismiss my breach of contract case was raised for

Resolved Question:

a motion to dismiss my breach of contract case was raised for failure to allege the satisfaction,occurence or waiver of all conditions precedent to the maintenance of the action in accordance with Fla R. Civ. Pro 1.12c

I do not know how to respond ?
Submitted: 2 years ago.
Category: Legal
Expert:  Ray replied 2 years ago.

RayAnswers :

Thanks for your question and good morning.Can you check this rule number again for me??

RayAnswers :

I think its off and i need to research this matter to respond.

Customer:

Fla.R.Civ. Pro. 1.120 (c)

RayAnswers :

Thanks we are on same page.Here is the rule.

RayAnswers : 1.120 Pleading Special Matters


(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.


(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally.


(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.


(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.


(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, a judicial or quasijudicial tribunal, or a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.


(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.


(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.


RayAnswers :

They are alleging here that you have not plead the three elements here necessary to claim breach of contract.

RayAnswers :

1. Valid Contract


First, you must prove that a valid contract exists. A written contract signed by all parties will likely satisfy this requirement.


If you are relying on a verbal contract, this element can be difficult (but not impossible) to prove.


2. Material Breach


Next, you have to show the court that the breach was major (material) and not minor.


In Sulkin v. All Florida Pain Management, Inc., the court said that failure to perform a minor part of a contractual duty cannot be classified as a material or vital breach.


3. Damages


To recover damages due to a contract breach, you must prove the damages were sustained as a direct result of the breach

RayAnswers :

1. Valid Contract there are three elements

RayAnswers :

here are three elements that must be present for a contract to exist: offer, acceptance, and consideration.


Offer


The first step to a contract is an offer. An offer is a written or spoken statement by a party of his or her intention to be held to a commitment upon acceptance of the offer. Many business owners have become involved in legal disputes because, during negotiations, a customer believed an offer had been made when the businessperson believed the parties were only discussing possible options. A businessperson should carefully consider whether his or her statements or the statements of other parties constitute offers. There are a number of factors to look at to determine whether a statement constitutes an offer.



  • Is the person making the offer serious? A business executive who jokingly suggests the sale of a successful business in exchange for a good bottle of scotch is not making an offer. On the other hand, a business executive who writes up an offer on a bar napkin may be perfectly serious. A court will look at the context in which the statement was made to determine whether it was a valid offer.

  • Does the statement show a willingness of the party to be held to its contents? A person requesting a price quote or opening negotiations is not making an offer. An advertisement is usually viewed as an invitation to an offer rather than an offer itself.

  • Does the statement contain definite terms? If the subject matter is identified, the parties are identified, the price is set, quantities are determined, and a time is set for performance, an offer very likely has been made. There should be enough information contained in the statement that, if needed, a court would be able to enforce the contract or determine the damages.


Acceptance


The second requirement for a valid contract is acceptance of the offer. In order for an acceptance of an offer to be effective, it must be made while the offer is still open. In some situations, the company making the offer gives a definite time frame: "My company will sell you this computer software for $2,000, but you must decide whether to buy it within two days." Other ways an offer may end include: the person making the offer withdraws the offer, the person who receives the offer rejects it, a reasonable amount of time passes after the offer is made, or the subject matter of the offer is destroyed before acceptance.


Unless an offer specifies otherwise, an offer can be accepted though the mail. An important rule known as the "mailbox rule" says that an acceptance is effective once it is put in the mailbox. If the offeror attempts to withdraw the offer after the acceptance is mailed but before it is received, the person accepting the offer can hold the offeror to the contract. For this reason, anyone making an offer should be aware that it might be accepted, by means of the mailbox rule, before the offeror knows of the acceptance. This can cause problems for the offeror if he or she assumed the offer was rejected and found another buyer. To avoid possible confusion, some businesses will specify in an offer that acceptance of the offer is only effective upon receipt of the acceptance.


If a person changes the conditions of an offer in responding to the offer, the offer is rejected and the changed conditions constitute a counter-offer: "I want to buy the software, but I will pay only $1,500 for it." In this scenario, the person who made the original offer can respond to the counter-offer by accepting or rejecting it, or proposing yet another offer.


There are two ways a person can accept an offer: by promising to do something, or by performing the desired act. In the first type, known as a bilateral contract, a customer accepts an offer to sell computer software by promising to pay $2,000 for the software. In the second type, known as a unilateral contract, a business owner offers a contractor $1,000 to replace ceiling tiles and the contractor replaces the tiles; the contractor accepted the offer by performing the act requested.


Consideration


Consideration is a legal concept that describes something of value given in exchange for a performance or a promise of performance. The presence of consideration distinguishes contracts from gifts. Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not make a determination about the adequacy of the consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.

RayAnswers :

It appears they are claiming here that either there was not a valid contract or there was no material breach of proof of damage.Your remedy here would be to amend your petition here.You would title it Petitioner's First Amended .....and try to cure the defects they are claiming if you can.Alternatively you argue that it isn't defective.

RayAnswers :

They may be claiming for instance that there was a missing element such as consideration--that you didn't pay for instance or some other item.You can try and amend your petition here and correct any missing element.

RayAnswers :

Go over your petition here and try to figure out what is missing and correct it.Then file it and serve copy on the other lawyer.

RayAnswers :

If you have a follow-up question, please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.


 


Please remember to click the ACCEPT button so that I can get credit for the answer. Leaving a BONUS (tip) & POSITIVE FEEDBACK after you accept is very much appreciated.


 


­­­­­­­­­­­­­­­­­­­­­­­­­­---------------------------------------------------------------------


Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.


 

Customer:

AM I WAITING FOR AN ANSWER ??

RayAnswers :

I'll repost it here.You need to amend your petition here he is claiming you are missing these elements--one or more in your petition.

RayAnswers :

Thanks we are on same page.Here is the rule.





9:25 AM


1.120 Pleading Special Matters


(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.


(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit. Malice, intent, knowledge, mental attitude, and other condition of mind of a person may be averred generally.


(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.


(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.


(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, a judicial or quasijudicial tribunal, or a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.


(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.


(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.







9:26 AM



They are alleging here that you have not plead the three elements here necessary to claim breach of contract.






9:26 AM



1. Valid Contract


First, you must prove that a valid contract exists. A written contract signed by all parties will likely satisfy this requirement.


If you are relying on a verbal contract, this element can be difficult (but not impossible) to prove.


2. Material Breach


Next, you have to show the court that the breach was major (material) and not minor.


In Sulkin v. All Florida Pain Management, Inc., the court said that failure to perform a minor part of a contractual duty cannot be classified as a material or vital breach.


3. Damages


To recover damages due to a contract breach, you must prove the damages were sustained as a direct result of the breach






9:28 AM



1. Valid Contract there are three elements






9:28 AM



here are three elements that must be present for a contract to exist: offer, acceptance, and consideration.


Offer


The first step to a contract is an offer. An offer is a written or spoken statement by a party of his or her intention to be held to a commitment upon acceptance of the offer. Many business owners have become involved in legal disputes because, during negotiations, a customer believed an offer had been made when the businessperson believed the parties were only discussing possible options. A businessperson should carefully consider whether his or her statements or the statements of other parties constitute offers. There are a number of factors to look at to determine whether a statement constitutes an offer.



  • Is the person making the offer serious? A business executive who jokingly suggests the sale of a successful business in exchange for a good bottle of scotch is not making an offer. On the other hand, a business executive who writes up an offer on a bar napkin may be perfectly serious. A court will look at the context in which the statement was made to determine whether it was a valid offer.

  • Does the statement show a willingness of the party to be held to its contents? A person requesting a price quote or opening negotiations is not making an offer. An advertisement is usually viewed as an invitation to an offer rather than an offer itself.

  • Does the statement contain definite terms? If the subject matter is identified, the parties are identified, the price is set, quantities are determined, and a time is set for performance, an offer very likely has been made. There should be enough information contained in the statement that, if needed, a court would be able to enforce the contract or determine the damages.


Acceptance


The second requirement for a valid contract is acceptance of the offer. In order for an acceptance of an offer to be effective, it must be made while the offer is still open. In some situations, the company making the offer gives a definite time frame: "My company will sell you this computer software for $2,000, but you must decide whether to buy it within two days." Other ways an offer may end include: the person making the offer withdraws the offer, the person who receives the offer rejects it, a reasonable amount of time passes after the offer is made, or the subject matter of the offer is destroyed before acceptance.


Unless an offer specifies otherwise, an offer can be accepted though the mail. An important rule known as the "mailbox rule" says that an acceptance is effective once it is put in the mailbox. If the offeror attempts to withdraw the offer after the acceptance is mailed but before it is received, the person accepting the offer can hold the offeror to the contract. For this reason, anyone making an offer should be aware that it might be accepted, by means of the mailbox rule, before the offeror knows of the acceptance. This can cause problems for the offeror if he or she assumed the offer was rejected and found another buyer. To avoid possible confusion, some businesses will specify in an offer that acceptance of the offer is only effective upon receipt of the acceptance.


If a person changes the conditions of an offer in responding to the offer, the offer is rejected and the changed conditions constitute a counter-offer: "I want to buy the software, but I will pay only $1,500 for it." In this scenario, the person who made the original offer can respond to the counter-offer by accepting or rejecting it, or proposing yet another offer.


There are two ways a person can accept an offer: by promising to do something, or by performing the desired act. In the first type, known as a bilateral contract, a customer accepts an offer to sell computer software by promising to pay $2,000 for the software. In the second type, known as a unilateral contract, a business owner offers a contractor $1,000 to replace ceiling tiles and the contractor replaces the tiles; the contractor accepted the offer by performing the act requested.


Consideration


Consideration is a legal concept that describes something of value given in exchange for a performance or a promise of performance. The presence of consideration distinguishes contracts from gifts. Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not make a determination about the adequacy of the consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.






9:33 AM



It appears they are claiming here that either there was not a valid contract or there was no material breach of proof of damage.Your remedy here would be to amend your petition here.You would title it Petitioner's First Amended .....and try to cure the defects they are claiming if you can.Alternatively you argue that it isn't defective.






9:34 AM



They may be claiming for instance that there was a missing element such as consideration--that you didn't pay for instance or some other item.You can try and amend your petition here and correct any missing element.






9:38 AM



Go over your petition here and try to figure out what is missing and correct it.Then file it and serve copy on the other lawyer.





9:38 AM


If you have a follow-up question, please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.


 


Please remember to click the ACCEPT button so that I can get credit for the answer. Leaving a BONUS (tip) & POSITIVE FEEDBACK after you accept is very much appreciated.


 


­­­­­­­­­­­­­­­­­­­­­­­­­­---------------------------------------------------------------------


Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.

RayAnswers :

These elements have to exist for their to be a contract.See if you plead these below.

RayAnswers :

here are three elements that must be present for a contract to exist: offer, acceptance, and consideration.


Offer


The first step to a contract is an offer. An offer is a written or spoken statement by a party of his or her intention to be held to a commitment upon acceptance of the offer. Many business owners have become involved in legal disputes because, during negotiations, a customer believed an offer had been made when the businessperson believed the parties were only discussing possible options. A businessperson should carefully consider whether his or her statements or the statements of other parties constitute offers. There are a number of factors to look at to determine whether a statement constitutes an offer.



  • Is the person making the offer serious? A business executive who jokingly suggests the sale of a successful business in exchange for a good bottle of scotch is not making an offer. On the other hand, a business executive who writes up an offer on a bar napkin may be perfectly serious. A court will look at the context in which the statement was made to determine whether it was a valid offer.

  • Does the statement show a willingness of the party to be held to its contents? A person requesting a price quote or opening negotiations is not making an offer. An advertisement is usually viewed as an invitation to an offer rather than an offer itself.

  • Does the statement contain definite terms? If the subject matter is identified, the parties are identified, the price is set, quantities are determined, and a time is set for performance, an offer very likely has been made. There should be enough information contained in the statement that, if needed, a court would be able to enforce the contract or determine the damages.


Acceptance


The second requirement for a valid contract is acceptance of the offer. In order for an acceptance of an offer to be effective, it must be made while the offer is still open. In some situations, the company making the offer gives a definite time frame: "My company will sell you this computer software for $2,000, but you must decide whether to buy it within two days." Other ways an offer may end include: the person making the offer withdraws the offer, the person who receives the offer rejects it, a reasonable amount of time passes after the offer is made, or the subject matter of the offer is destroyed before acceptance.


Unless an offer specifies otherwise, an offer can be accepted though the mail. An important rule known as the "mailbox rule" says that an acceptance is effective once it is put in the mailbox. If the offeror attempts to withdraw the offer after the acceptance is mailed but before it is received, the person accepting the offer can hold the offeror to the contract. For this reason, anyone making an offer should be aware that it might be accepted, by means of the mailbox rule, before the offeror knows of the acceptance. This can cause problems for the offeror if he or she assumed the offer was rejected and found another buyer. To avoid possible confusion, some businesses will specify in an offer that acceptance of the offer is only effective upon receipt of the acceptance.


If a person changes the conditions of an offer in responding to the offer, the offer is rejected and the changed conditions constitute a counter-offer: "I want to buy the software, but I will pay only $1,500 for it." In this scenario, the person who made the original offer can respond to the counter-offer by accepting or rejecting it, or proposing yet another offer.


There are two ways a person can accept an offer: by promising to do something, or by performing the desired act. In the first type, known as a bilateral contract, a customer accepts an offer to sell computer software by promising to pay $2,000 for the software. In the second type, known as a unilateral contract, a business owner offers a contractor $1,000 to replace ceiling tiles and the contractor replaces the tiles; the contractor accepted the offer by performing the act requested.


Consideration


Consideration is a legal concept that describes something of value given in exchange for a performance or a promise of performance. The presence of consideration distinguishes contracts from gifts. Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not make a determination about the adequacy of the consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.





9:33 AM



It appears they are claiming here that either there was not a valid contract or there was no material breach of proof of damage.Your remedy here would be to amend your petition here.You would title it Petitioner's First Amended .....and try to cure the defects they are claiming if you can.Alternatively you argue that it isn't defective.






9:34 AM



They may be claiming for instance that there was a missing element such as consideration--that you didn't pay for instance or some other item.You can try and amend your petition here and correct any missing element.



Ray, Lawyer
Category: Legal
Satisfied Customers: 29493
Experience: 29 years in civil, probate, real estate, elder law
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