California Civil Jury Instructions (CACI) (2017)

328. Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Ele- ments

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328.Breach of Implied Duty to Perform With Reasonable
Care—Essential Factual Elements
The parties’ contract requires that [name of defendant] [specify
performance alleged to have been done negligently, e.g., install cable
television service]. It is implied in the contract that this performance will
be done competently and with reasonable care. [Name of plaintiff] claims
that [name of defendant] breached this implied condition. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] entered into a
[2. That [name of plaintiff] did all, or substantially all of the
significant things that the contract required [him/her/it] to do;]
[2. That [name of plaintiff] was excused from having to [specify things
that plaintiff did not do, e.g., obtain a guarantor on the contract];]
[3. That [specify occurrence of all conditions required by the contract
for [name of defendant]’s performance, e.g., the property was
rezoned for residential use];]
[3. That [specify condition(s) that did not occur] [was/were] [waived/
4. That [name of defendant] failed to use reasonable care in [specify
performance]; and
5. That [name of plaintiff]was harmed by [name of defendant]’s
New June 2015
Directions for Use
Give this instruction if the plaintiff alleges harm from the defendant’s failure to
perform a contractual obligation with reasonable care. Every contract includes an
implied duty to perform required acts competently. (Holguin v. Dish Network LLC
(2014) 229 Cal.App.4th 1310, 1324 [178 Cal.Rptr.3d 100].) If negligent
performance is alleged, the jury should be instructed that the contract contains this
implied duty. The jury must then decide whether the duty has been breached. It
must also find all of the other elements required for breach of contract. (See CACI
No. 303, Breach of Contract—Essential Factual Elements.)
This instruction may be adapted for use as an affirmative defense if the defendant
asserts that the plaintiff is not entitled to recover on the contract because of the
plaintiff’s failure to perform its duties competently. (See Roscoe Moss Co. v.
Jenkins (1942) 55 Cal.App.2d 369, 376–378 [130 P.2d 477].)
For discussion of issues with the options for elements 2 and 3, see the Directions
for Use to CACI No. 303, Breach of Contract—Essential Factual Elements.
Sources and Authority
• “[E]xpress contractual terms give rise to implied duties, violations of which
may themselves constitute breaches of contract. ‘ “Accompanying every contract
is a common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any
of these conditions is a tort, as well as a breach of the contract.” The rule
which imposes this duty is of universal application as to all persons who by
contract undertake professional or other business engagements requiring the
exercise of care, skill and knowledge; the obligation is implied by law and need
not be stated in the agreement [citation].’ ” (Holguin,supra, 229 Cal.App.4th at
p. 1324.)
• “A contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69
Cal.Rptr.2d 466].)
• “[T]he statement in the written contract that it contains the entire agreement of
the parties cannot furnish the appellants an avenue of escape from the entirely
reasonable obligation implied in all contracts to the effect that the work
performed ‘shall be fit and proper for its said intended use,’ as stated by the
trial court.” (Kuitems v. Covell (1951) 104 Cal.App.2d 482, 485 [231 P.2d
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2010) Contracts, §§ 798, 800
13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.12
(Matthew Bender)
27 California Legal Forms, Ch. 75, Formation of Contracts and Standard
Contractual Provisions, § 75.230 (Matthew Bender)
2 Crompton et al., Matthew Bender Practice Guide: California Contract Litigation,
Ch. 21, Asserting a Particular Construction of Contract, 21.79
329 Reserved for Future Use