CACI 328 Breach of Implied Duty to Perform With Reasonable Care—Essential Factual Elements

California Civil Jury Instructions CACI

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 contract;

[2.That [name of plaintiff] did all, or substantially all of the significant things that the contract required [him/her/nonbinary pronoun/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/excused];]

4.That [name of defendant] failed to use reasonable care in [specify performance]; and

5.That [name of plaintiffwas harmed by [name of defendant]’s conduct.

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].’ ” (Holguinsupra, 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 552].)

Secondary Sources

1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 822, 824
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