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Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Earlier this year I wrote an article regarding proving the defense of unilateral mistake.  In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake.  Based on this opinion, a party moved for a rehearing en banc under Florida Rule of Appellate Procedure 9.331–see applicable portion of 9.331(d)(1)–arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. 

The appellate court granted the rehearing en banc to address this undeniable conflict and lack of uniformity holding that inducement is NOT a required element in proving unilateral mistake:  “We conclude that inducement is not an element of unilateral mistake. A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.”  DePrince v. Starboard Cruise Services, Inc., 43 Fla.L.Weekly D1734a (Fla. 3d DCA 2018).   Without the inducement element, the defense of unilateral mistake becomes easier to prove.


9.331(d)(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by rule 9.330, a party may move for an en banc rehearing solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A response may be served within 10 days of service of the motion. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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