Rescission

1Elements and Case Citations

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The character or relationship of the parties;
The making of the contract;
The existence of fraud, mutual mistake, false representation, impossibility of performance, or other ground for rescission or cancellation;
Plaintiff has rescinded the contract and notified defendant of such rescission;
If the plaintiff has received benefits from the contract, the plaintiff should further allege an offer to restore those benefits to the defendant, if restoration is possible; and
Plaintiff has no adequate remedy at law.

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The character or relationship of the parties;
The making of the contract;
The existence of fraud, mutual mistake, false representation, impossibility of performance, or other ground for rescission or cancellation;
Plaintiff has rescinded the contract and notified defendant of such rescission;
If the plaintiff has received benefits from the contract, the plaintiff should further allege an offer to restore those benefits to the defendant, if restoration is possible; and
Plaintiff has no adequate remedy at law.

Supreme Court: E.F. Hutton & Co. v. Rousseff, 537 So.2d 978, 980 (Fla. 1989).

Second District: Saenz v. Rigau & Rigau, P.A., 549 So.2d 682 (Fla. 2d DCA 1989).

Fourth District: Billian v. Mobil Corp., 710 So.2d 984, 991 (Fla. 4th DCA 1998).

Fifth District: Townsend v. Morton, 36 So.3d 865 (Fla. 5th DCA 2010).

§ 672.608, Fla. Stat.

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: § 95.11(3)(l), Fla. Stat. (four years).

(3) Courts should not allow claims for rescission when plaintiff may pursue action at law for breach of warranty or contract. Central Fla. Antenna Serv., Inc. v. A.M. Crabtree, 503 So.2d 1351, 1352 (Fla. 5th DCA 1987).

(4) Rescission is available only for fraud, accident or mistake. Royal v. Parado, 462 So. 2d 849, 855 (Fla. 1st DCA 1985); AVVA-BC, LLC v. Amiel, 25 So.3d 7, 11 (Fla. 3d DCA 2009); but see Hibiscus Ass’n, Ltd., v. Bd. of Tr., 50 F.3d 908, 916 (11th Cir. 1995) (Florida law also allows rescission for breach of dependent covenant).

(5) Rescission is generally not available when the parties cannot return to positions occupied prior to execution of contract Paul Revere Life Ins. Co. v. Dietz, 785 F. Supp. 970, 972 (M.D. Fla. 1992). But see Bass v. Farish, 616 So.2d 1146, 1147 (Fla. 4th DCA 1993) (noting an exception to the general rule when the inability of one party to restore to the status quo is caused by the fraud of the other party); Bland v. Freightliner LLC, 206 F. Supp. 2d 1202, 1208-09 (M.D. Fla. 2002) (stating that a court may grant rescission, despite the impossibility of restoration to the status quo, if the equities between the parties can be balanced).

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The Florida Rules of Civil Procedure	The Florida Rules of Appellate Procedure
The Florida Evidence Code	The Federal Appellate Rules of Civil Procedure
Rules Regulating The Florida Bar	The Local Rules of the Southern District of Florida
The Federal Rules of Civil Procedure	The Local Rules of the Middle District of Florida
Federal Rules of Evidence	The Local Rules of the Northern District of Florida
Florida Rules of Judicial Administration	Florida Standard Jury Instructions