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TITLE XLI

STATUTE OF FRAUDS, FRAUDULENT TRANSFERS, AND GENERAL ASSIGNMENTS

Last update: 2013-11-01


  • Unenforceable Contracts
  • Fraudulent Transfers
  • General Assignments
  • Version 2013-11-01
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  • Version 2011-11-08

Chapter 725

UNENFORCEABLE CONTRACTS

725.01 - Promise to pay another’s debt, etc

No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of her or his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, or dentist licensed under chapter 466, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.


History.- s. 10, Nov. 15, 1828; RS 1995; GS 2517; RGS 3872; CGL 5779; s. 10, ch. 75-9; s. 933, ch. 97-102; s. 60, ch. 97-264; ss. 227, 294, ch. 98-166.

725.03 - Newspaper subscription

No person shall be liable to pay for any newspaper, periodical or other like matter, unless the person shall subscribe for or order the same in writing.


History.- s. 1, ch. 379, 1851; RS 1997; GS 2519; RGS 3874; CGL 5781; s. 934, ch. 97-102.

725.04 - Voluntary payment; pleading

When a suit is instituted by a party to a contract to recover a payment made pursuant to the contract and by the terms of the contract there was no enforceable obligation to make the payment or the making of the payment was excused, the defense of voluntary payment may not be interposed by the person receiving payment to defeat recovery of the payment.


History.- ss. 1, 2, ch. 21902, 1943; s. 1, ch. 29737, 1955; s. 41, ch. 67-254.

Note.- Former s. 52.24.


725.05 - Satisfaction for less than amount due

When the amount of any debt or obligation is liquidated, the parties may satisfy the debt by a written instrument other than by endorsement on a check for less than the full amount due.


History.- s. 1, ch. 71-94.

725.06 - Construction contracts; limitation on indemnification

  • (1) Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman or any combination thereof wherein any party referred to herein promises to indemnify or hold harmless the other party to the agreement, contract, or guarantee for liability for damages to persons or property caused in whole or in part by any act, omission, or default of the indemnitee arising from the contract or its performance, shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any. Notwithstanding the foregoing, the monetary limitation on the extent of the indemnification provided to the owner of real property by any party in privity of contract with such owner shall not be less than $1 million per occurrence, unless otherwise agreed by the parties. Indemnification provisions in any such agreements, contracts, or guarantees may not require that the indemnitor indemnify the indemnitee for damages to persons or property caused in whole or in part by any act, omission, or default of a party other than:

    • (a) The indemnitor;

    • (b) Any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees; or

    • (c) The indemnitee or its officers, directors, agents, or employees. However, such indemnification shall not include claims of, or damages resulting from, gross negligence, or willful, wanton or intentional misconduct of the indemnitee or its officers, directors, agents or employees, or for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the indemnitor or any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees.

  • (2) A construction contract for a public agency or in connection with a public agency’s project may require a party to that contract to indemnify and hold harmless the other party to the contract, their officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney’s fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the indemnifying party and persons employed or utilized by the indemnifying party in the performance of the construction contract.

  • (3) Except as specifically provided in subsection (2), a construction contract for a public agency or in connection with a public agency’s project may not require one party to indemnify, defend, or hold harmless the other party, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding, and any such contract provision is void as against public policy of this state.

  • (4) This section does not affect any contracts, agreements, or guarantees entered into before the effective date of this section or any renewals thereof.

History.- s. 1, ch. 72-52; s. 935, ch. 97-102; s. 31, ch. 2000-372; s. 10, ch. 2001-211.

Note.- Former s. 768.085.


725.07 - Discrimination on basis of sex, marital status, or race forbidden

  • (1) No person, as defined in s. 1.01(3) shall discriminate against any person based on sex, marital status, or race in the areas of loaning money, granting credit, or providing equal pay for equal services performed.

  • (2) Any violation of this section may be brought in the courts of this state by the individual upon whom the discrimination has been perpetrated in a civil action, and said individual shall be entitled to collect, not only compensatory damages, but, in addition thereto, punitive damages and reasonable attorney fees for a violation of this section.

History.- ss. 1, 2, ch. 73-251.

725.08 - Design professional contracts; limitation in indemnification

  • (1) Notwithstanding the provisions of s. 725.06, if a design professional provides professional services to or for a public agency, the agency may require in a professional services contract with the design professional that the design professional indemnify and hold harmless the agency, and its officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the design professional and other persons employed or utilized by the design professional in the performance of the contract.

  • (2) Except as specifically provided in subsection (1), a professional services contract entered into with a public agency may not require that the design professional defend, indemnify, or hold harmless the agency, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding, and any such contract provision shall be void as against the public policy of this state.

  • (3) “Professional services contract” means a written or oral agreement relating to the planning, design, construction, administration, study, evaluation, consulting, or other professional and technical support services furnished in connection with any actual or proposed construction, improvement, alteration, repair, maintenance, operation, management, relocation, demolition, excavation, or other facility, land, air, water, or utility development or improvement.

  • (4) “Design professional” means an individual or entity licensed by the state who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture, under chapter 472 to practice land surveying and mapping, or under chapter 471 to practice engineering, and who enters into a professional services contract.

  • (5) This section does not affect contracts or agreements entered into before the effective date of this section.

History.- s. 1, ch. 2000-162; s. 11, ch. 2001-211.

Chapter 726

FRAUDULENT TRANSFERS

726.101 - Short title

This act may be cited as the “Uniform Fraudulent Transfer Act.”


History.- s. 1, ch. 87-79.

726.102 - Definitions

As used in ss. 726.101-726.112:
  • (1) “Affiliate” means:

    • (a) A person who directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities:

      • 1. As a fiduciary or agent without sole discretionary power to vote the securities; or

      • 2. Solely to secure a debt, if the person has not exercised the power to vote.

    • (b) A corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by the debtor or a person who directly or indirectly owns, controls, or holds, with power to vote, 20 percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities:

      • 1. As a fiduciary or agent without sole power to vote the securities; or

      • 2. Solely to secure a debt, if the person has not in fact exercised the power to vote.

    • (c) A person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or

    • (d) A person who operates the debtor’s business under a lease or other agreement or controls substantially all of the debtor’s assets.

  • (2) “Asset” means property of a debtor, but the term does not include:

    • (a) Property to the extent it is encumbered by a valid lien;

    • (b) Property to the extent it is generally exempt under nonbankruptcy law; or

    • (c) An interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.

  • (3) “Charitable contribution” means a charitable contribution as that term is defined in s. 170(c) of the Internal Revenue Code of 1986, if that contribution consists of:

    • (a) A financial instrument as defined in s. 731(c)(2)(C) of the Internal Revenue Code of 1986; or

    • (b) Cash.

  • (4) “Claim” means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.

  • (5) “Creditor” means a person who has a claim.

  • (6) “Debt” means liability on a claim.

  • (7) “Debtor” means a person who is liable on a claim.

  • (8) “Insider” includes:

    • (a) If the debtor is an individual:

      • 1. A relative of the debtor or of a general partner of the debtor;

      • 2. A partnership in which the debtor is a general partner;

      • 3. A general partner in a partnership described in subparagraph 2.; or

      • 4. A corporation of which the debtor is a director, officer, or person in control;

    • (b) If the debtor is a corporation:

      • 1. A director of the debtor;

      • 2. An officer of the debtor;

      • 3. A person in control of the debtor;

      • 4. A partnership in which the debtor is a general partner;

      • 5. A general partner in a partnership described in subparagraph 4.; or

      • 6. A relative of a general partner, director, officer, or person in control of the debtor.

    • (c) If the debtor is a partnership:

      • 1. A general partner in the debtor;

      • 2. A relative of a general partner in, a general partner of, or a person in control of the debtor;

      • 3. Another partnership in which the debtor is a general partner;

      • 4. A general partner in a partnership described in subparagraph 3.; or

      • 5. A person in control of the debtor.

    • (d) An affiliate, or an insider of an affiliate as if the affiliate were the debtor.

    • (e) A managing agent of the debtor.

  • (9) “Lien” means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.

  • (10) “Person” means an individual, partnership, corporation, association, organization, government or governmental subdivision or agency, business trust, estate, trust, or any other legal or commercial entity.

  • (11) “Property” means anything that may be the subject of ownership.

  • (12) “Qualified religious or charitable entity or organization” means:

    • (a) An entity described in s. 170(c)(1) of the Internal Revenue Code of 1986; or

    • (b) An entity or organization described in s. 170(c)(2) of the Internal Revenue Code of 1986.

  • (13) “Relative” means an individual related by consanguinity within the third degree as determined by the common law, a spouse, or an individual related to a spouse within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree.

  • (14) “Transfer” means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.

  • (15) “Valid lien” means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings.

History.- s. 2, ch. 87-79; s. 1, ch. 2013-189.

726.103 - Insolvency

  • (1) A debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets at a fair valuation.

  • (2) A debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.

  • (3) A partnership is insolvent under subsection (1) if the sum of the partnership’s debts is greater than the aggregate, at a fair valuation, of all of the partnership’s assets and the sum of the excess of the value of each general partner’s nonpartnership assets over the partner’s nonpartnership debts.

  • (4) Assets under this section do not include property that has been transferred, concealed, or removed with intent to hinder, delay, or defraud creditors or that has been transferred in a manner making the transfer voidable under ss. 726.101-726.112.

  • (5) Debts under this section do not include an obligation to the extent it is secured by a valid lien on property of the debtor not included as an asset.

History.- s. 3, ch. 87-79; s. 936, ch. 97-102.

726.104 - Value

  • (1) Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property is transferred or an antecedent debt is secured or satisfied, but value does not include an unperformed promise made otherwise than in the ordinary course of the promisor’s business to furnish support to the debtor or another person.

  • (2) For the purposes of ss. 726.105(1)(b) and 726.106, a person gives a reasonably equivalent value if the person acquires an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure sale or execution of a power of sale for the acquisition or disposition of the interest of the debtor upon default under a mortgage, deed of trust, or security agreement.

  • (3) A transfer is made for present value if the exchange between the debtor and the transferee is intended by them to be contemporaneous and is in fact substantially contemporaneous.

History.- s. 4, ch. 87-79.

726.105 - Transfers fraudulent as to present and future creditors

  • (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

    • (a) With actual intent to hinder, delay, or defraud any creditor of the debtor; or

    • (b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

      • 1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

      • 2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

  • (2) In determining actual intent under paragraph (1)(a), consideration may be given, among other factors, to whether:

    • (a) The transfer or obligation was to an insider.

    • (b) The debtor retained possession or control of the property transferred after the transfer.

    • (c) The transfer or obligation was disclosed or concealed.

    • (d) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit.

    • (e) The transfer was of substantially all the debtor’s assets.

    • (f) The debtor absconded.

    • (g) The debtor removed or concealed assets.

    • (h) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred.

    • (i) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred.

    • (j) The transfer occurred shortly before or shortly after a substantial debt was incurred.

    • (k) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

History.- s. 5, ch. 87-79; s. 937, ch. 97-102.

726.106 - Transfers fraudulent as to present creditors

  • (1) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.

  • (2) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

History.- s. 6, ch. 87-79.