328 . Breach of Implied Duty to Perform With Reasonable
Care - Essential Factual Elements
The parties’ contract requir es 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 car e. [ Name of plaintiff ] claims
that [ name of defendant ] breached this implied condition. T o 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/ 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/
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 plaintif f 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, Br each of Contract - Essential Factual Elements .)
This instruction may be adapted for use as an af firmative defense if the defendant
asserts that the plaintif f is not entitled to recover on the contract because of the
plaintif f’ 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, Br each 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.
• “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 ef fect 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 W itkin, Summary of California Law (1 1th 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 Standar d
Contractual Pr ovisions , § 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
CONTRACTS CACI No. 328
Page last reviewed May 2024
Amherst professor Austin Sarat discusses a legal controversy in Nebraska regarding felony disenfranchisement, specifically focusing on a recent law allowing felons to vote immediately after completing their sentences and the state attorney general’s challenge to this law.
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