Plain English Jury Instructions
Section 2. Contract
Table of Contents
In any contract dispute, there are always legal issues which must be decided:
This list is certainly not complete. These legal issues are for the judge to decide, not the jury. Juries only decide facts. Ordinarily, in a contract case, the judge will focus the jury on the particular “contractual facts” to be determined and then instruct on which direction the jury will follow. Again, by way of example only:
The proposed instructions that follow discuss the different elements of contract issues, but judges are encouraged to determine all the legal questions that do not hinge on disputed evidence. Only the disputed fact questions go to the jury, and then with explicit instructions on the effect of its determination.
[Name of Parties] had a contract in which [other party] agreed to do _________ in exchange for _____________ [paid/done] by [claiming party]. [Claiming party] claims that [other party] did not do _______________ [or did not adequately/substantially do ______________]. If you find that it is more likely true than not true that [other party] failed to do what [he she it] was supposed to do, then you should consider my instructions regarding damages.
The factors that contribute to a breach of contract claim are factually driven. The instruction as drafted is targeted at the most general statement of contract breach; the instruction should be modified significantly to capture the actual facts presented to the jury and the actual claim of breach asserted.
The parties disagree regarding whether [X] did [describe contract obligation] well enough to be [paid/etc.] by [Y]—in other words, they disagree on whether [X] really did perform sufficiently under the contract so that [Y] had to [pay [X] or describe Y’s duty].
To determine that [X’s] actions were more likely than not sufficient to fulfill [X’s] obligations under the contract, you can consider the following factors [use these factors or add others as appropriate to fact situation]:
See Fletcher Hill, Inc. v. Crosbie, 178
[X] claims that the contract is void because [X] was forced into the contract against [his her its] will.
To determine that [X] was more likely than not forced into the contract against [his her its] will, you can consider the following factors:
See Ben & Jerry's Homemade, Inc. v. La Soul, Inc., 983 F.Supp.
504, 506-07 (D.Vt.1997) (reviewing elements of fraud and
[X] admits that [he she it] did not [describe X’s intended conduct], but claims that [his her its] failure to do so was excused because there was no longer any reason to [describe conduct] after [describe the frustration of purpose – “the building burned down” for example]. If you find that it is more likely true than not that [the event that caused the frustration of purpose] was not reasonably foreseeable by [X and Y] when they entered into the contract, and that [X] could no longer fulfill the purpose of the contract after [the event], then [X’s] failure to perform is excused.
Reasonable foreseeability of the event that allegedly causes the frustration of purpose is the touchstone for this defense. If an event was “reasonably foreseeable” to the parties, then it cannot be used to excuse performance for frustration of purpose. No reported Supreme Court case has relied upon this doctrine and the instruction is taken from the Restatement.
[X] admits that [he she it] did not [describe X’s intended conduct], but claims that [his her its] failure was excused because [describe event leading to impractability/impossibility] made it not reasonably practical/possible to do so.
If you find that it is more likely true than not that [the event] made [X’s] job/promise impossible, or impractical because it would cause extreme and unreasonable [difficulty, expense, injury, loss] to [X] that was not reasonably foreseeable by [X and Y] when they entered into the contract, then [X’s] failure to perform is excused.
See Agway, Inc. v. Marotti, 149
See note regarding frustration of purpose. An event or circumstance that was “reasonably foreseeable” to the parties cannot serve as the basis of an impracticability/impossibility defense.
In this case the
[name of party opposing the claim] claims the [name of party making the claim]
fraudulently induced [name of party opposing the claim] to enter into the
contract. [Name of party opposing the claim] argues that for that reason [name
of party opposing the claim] should not have to pay any damages to [name of
party making the claim]. Under
[Name of party opposing the claim] has the burden of proving that [name of party making the claim] fraudulently induced [name of party opposing the claim] into agreeing to the contract.
To find that [name of party making the claim] fraudulently induced [name of party opposing the claim] to enter into the contract, you must decide that it is more likely than not true:
See Sarvis v. Vermont State Colleges, 172 Vt. 76 (2001); Ben & Jerry’s Homemade, Inc. v. La Soul, Inc., 983 F. Supp 504 (D. Vt. 1997).
The measure of damages available
for breach of contract depends on the circumstances of each particular
case. It is therefore the Committee’s
anticipation that in most cases, the trial judge will make the decision as to
the proper measure of damages available, given the claims and evidence in the
case, and will instruct the jury accordingly. There is little available
In this case, the [name of party making the claim] claims that [he she it] and the [name of party opposing the claim] agreed to the following: [insert terms of the alleged contract]. [Name of party opposing the claim] denies that there was an agreement. You must decide whether there was a contract between [name of party making the claim] and [name of party opposing the claim].
To find that there was a contract, you must decide that it is more likely true than not true:
Agreement as to these essential terms may be implied from conduct or words. The law does not require that the conduct or words be in any special form(, or that the words be in writing.)
Starr Farm Beach Campowners
Ass'n, Inc. v. Boylan,
construction of a contract is a matter of law for the court to decide. Bergeron v. Boyle, 176
Furthermore, most contracts are formed with mutual promises and many disputes involve claims by both plaintiff and defendant that the other side breached the agreement. For that reason these breach of contract instructions can be changed to reflect the dispute at hand. As a matter of style the form instructions presume a lawsuit in which the plaintiff claims the defendant breached a contract.
“Essential terms” of a contract vary from case to case. For example, in Benya v. Stevens & Thompson Paper Co., 143 Vt. 521, 526, 468 A.2d 929, 931 (1983), the Vermont Supreme Court held that because the defendant was expected to finance three-quarters of the purchase price of real estate, financing was an essential term of the sales contract.
Likewise, in Reynolds v. Sullivan, 136
It is never enough that the parties think they have made a contract; they must express their subjective intent in a manner that is capable of understanding what they agreed to. Vagueness, indefiniteness and uncertainty of expression as to any of the “essential terms” of an agreement have been held to preclude the creation of an enforceable contract. 1 Corbin on Contracts s 95 (1963). Evarts v. Forte, 135 Vt. 306 (1977)(amount of land to be conveyed and the location of boundary lines are essential terms of an agreement to convey land.)
The rule appears to be that the terms of a contract must be
reasonably certain enough to provide a basis for determining the existence of a
breach and for giving an appropriate remedy. Restatement (Second) of Contracts §33.
If the terms are so uncertain that there is no basis for deciding whether the
agreement has been kept or broken, there is no contract. Restatement (Second) of Contracts § 33, comment a. But even in such cases
partial performance or other action in reliance on the agreement may reinforce
[Name of party making the claim] claims that [name of party opposing the claim] agreed to [describe the disputed terms.] [Name of party opposing the claim] admits that [name of party opposing the claim and name of party making the claim] had a contract, but [name of party opposing the claim] denies that this promise was part of the contract.
The terms of a contract may be expressly stated or the terms of a contract may be implied from conduct or words. The law does not require that the conduct or words be in any special form in order for the conduct or words to prove that a contract contained the disputed terms.
OPTIONAL LANGUAGE For example in this case, the written agreement between [name of party] and [name of party] does not [described terms about which parties have a dispute,] but you have heard testimony about business they did with one another before they entered into this contract. You must decide if they intended the prior business practices to be part of their contract. You may conclude that the parties intended to include the prior business practices if a person in [name of party’s] position would believe that [name of party] intended to continue the practice, based on [name of party’s] statements or actions.
OPTIONAL LANGUAGE: To find that a promise was made as part of the contract you must decide that it is more likely true than not true that:
Construction of a contract is a matter of law and not a factual determination. Universal Underwriters Ins. Co. v. Allstates Air Cargo, Inc., 175 Vt. 475, 820 A.2d 988 (2003), citing Gannon v. Quechee Lakes Corp., 162 Vt. 465, 469, 648 A.2d 1378, 1380 (1994).
This instruction is for a case in which the existence of a
term is in dispute. The instruction should not be used for the purpose of
requiring the jury to construe an unambiguous contract, but to instruct the
jury about the need to decide what the parties agreed to in the contract. If
the contract is ambiguous, then the jury may be asked to determine its meaning.
See John A. Russell Corp. v. Bohlig, 170
Lapoint v. Dumont Const. Co., 128
The first “optional language” is to be used in a case in which there is a claim that a contract included terms from prior dealing between the parties. The second “optional language” is to be used when there is a dispute about whether or not the asserted promise was supported by consideration.
In this case [name of party making the claim] claims that [name of party opposing the claim] promised to [describe promised performance.] [Name of plaintiff] also claims that the [name of party opposing the claim] failed to keep defendant's promise to (insert alleged promise) and that (insert alleged action or forbearance in reliance by plaintiff) in reliance on the promise.
For [name of party opposing the claim’s] promise to be a contract between [name of party making the claim and name of party opposing the claim,] you must decide that it is more likely true than not true:
Woolaver v. State, 175 Vt. 397, 833 A.2d 849 (2003)(“To
enforce a claim for promissory estoppel, plaintiff
must show ‘[a] promise which the promisor should
reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such
action or forbearance’ and that ‘injustice can be avoided only by enforcement
of the promise.”), quoting Foote v. Simmonds Precision Prods. Co., 158
Restatement (Second) of Contracts § 90—Promise Reasonably Inducing Action or Forebearance
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires . . . .
In this case, the parties agree that they entered into a contract. [Name of party making the claim or name of party opposing the claim, as the case may be] claims that after this contract was made, the parties agreed to change the terms of the original contract.
To find that the terms of the original contract were changed, you must decide that it is more likely true that not true:
The question whether and how a contract can be modified is a question of law for the court where the agreement contains a provision about modification. This instruction is for those cases where the modification is recognized, but the terms of the modification are in dispute.
New England Partnership, Inc. v. Rutland City School Dist., 173 Vt. 69, 786 A.2d 408 (2001)(“It is a generally understood principle of contract construction that “[t]he modification of a contract results in the establishment of a new agreement between the parties which pro tanto supplants the affected provisions of the original agreement while leaving the balance of it intact.”) citing, Beacon Terminal Corp. v. Chemprene, Inc., 75 A.D.2d 350, 429 N.Y.S.2d 715, 717-18 (1980) (citing in part 6 Corbin, Contracts § 1293 (1962)).
Chomicky v. Buttolph,
[Name of Plaintiff] says that [name of defendant] breached [his/her] promise of good faith and fair dealing when [name of defendant] [describe alleged action].
Every contract comes with a promise of good faith and fair dealing. This means that both [name of plaintiff] and [name of defendant] promised not to do anything to destroy or hurt the other’s ability to get the benefits of their agreement. This promise does not change the party’s agreement. It does not add terms to it. And it does not stop the parties from doing what the contract allows them to do. What it means is that the parties must deal fairly and reasonably with one another and act in good faith toward one another and the purpose of their agreement.
You must first decide if [name of defendant] did [describe the alleged action]. If you find that he/she did, you must next decide whether that action was fair and reasonable and was made in good faith toward [name of plaintiff] and the purpose of their agreement. If it was not, then you must decide if [name of defendant]’s actions reduced the value of the contract to [name of plaintiff] or stopped [name of plaintiff] from enjoying the [name benefit of contract that plaintiff claims has been lost]. If it has, then you must find that [name of defendant] violated the implied covenant of good faith and fair dealing in the present contract and must compensate [name of plaintiff] for what [he/she] would have enjoyed if [he/she] had received [name benefit of contract that plaintiff claims has been lost].
If you [name of defendant] breached the covenant, then you should go on to consider damages.
See Carmichael v. Adirondack Bottled Gas, 161 Vt. 200 (1993) in which
An underlying principle implied in every contract is
that each party promises not to do anything to undermine or destroy the other's
receive the benefits of the agreement. Shaw v. E. I. DuPont De Nemours & Co., 126
* * *
As the Restatement points out,
[a] complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance.
the consequences of a breach of the implied covenant cannot be concisely
summarized in a form jury instruction. They must be drafted based on the facts
of each case. The Vermont Supreme Court recognized as much in
Although we have stated that a covenant of good faith
is implied in every contract, an action
for its breach is really no different from a tort action, because the duty of good
faith is imposed by law and is not a contractual term that the parties are free to bargain in or out as
they see fit. Cf. Ainsworth
v. Franklin County Cheese Corp., 156
See also Monahan v. GMAC Mortg. Corp., 2005 VT 110. The Vermont Supreme Court has recommended in
at least one post-Carmichael decision
that this claim follows the same pattern and standard as a traditional tort
claim since it involves a non-negotiable duty of reasonableness that if breached
leads to liability. Peerless Ins. Co. v.
Damage Note: Damages for a breach of this covenant may be more than normal contract damages as the Vermont Supreme Court and other jurisdictions have classified this claim as more akin tort than conventional contract law.
In this case both [name of plaintiff] and [name of defendant] agreed to do business with one another but their agreement did not state a means for calculating the price of the work actually done. Because the contract does not answer the question, the jury must decide how much [name of plaintiff] should be paid for the work that [name of plaintiff] did. The question is always, “What has the Plaintiff earned?”
In considering the value of [name of plaintiffs]’s work, you should consider the evidence about how much time was put in by [name of plaintiff] and those who worked for him. You should also consider the fair market value of the work, that is, the evidence about what is usually charged in the community for work of the kind that [name of plaintiff] did. You should consider the fair market value of the materials that [name of plaintiff] used and the profit [name of plaintiff] should earned on the cost of the materials, according to the evidence. You should consider [name of plaintiff’s] business overhead, beyond the direct payments to those who worked for [name of plaintiff.] You should also consider the cost to [name of plaintiff] of designing, planning and supervising the work.
You should subtract from the value of the work any money that [name of defendant] paid to [name of plaintiff.]