## Facts

- A condominium developer sold a unit to Harold and Elaine Behrman.
- When the Behrmans could not sell their home as planned, they decided to sell the condominium and contracted to sell it back to the developer (Wolofsky), who became the purchaser under the repurchase agreement.
- Before closing between Wolofsky and the Behrmans, Wolofsky arranged a subsequent sale to a new buyer and permitted that buyer to occupy the unit before Wolofsky closed with the Behrmans.
- Shortly before the scheduled closing, a Behrman discovered a third party occupying the apartment.
- The Behrmans refused to close and returned Wolofsky’s deposit.
- Wolofsky sued for breach of contract seeking damages including expected profit from the higher-priced resale contract.
- The Behrmans admitted breach but contended that, absent bad faith, damages were limited to return of the deposit and interest.

## Issues

1. Whether a purchaser may recover benefit-of-the-bargain (“loss of bargain”) damages for a vendor’s breach of a real estate sales contract without proving the vendor acted in bad faith.
2. Whether, absent bad faith, the purchaser’s recovery is limited to restitutionary relief such as return of the deposit with interest.

## Decision

- The appellate court affirmed the judgment for the purchaser limited to return of the deposit plus interest.
- The court held that benefit-of-the-bargain damages were unavailable because the purchaser did not prove the vendors’ breach was in bad faith.
- The court treated the vendors’ refusal to close as a breach, but not one reflecting the type of lack of good faith required to expand damages beyond restitution.

## Legal Principles

- In Florida, a vendor’s breach of a real estate sales contract supports benefit-of-the-bargain damages only upon a showing that the vendor acted in bad faith (i.e., a lack of good faith in refusing to perform).
- When bad faith is not shown, the purchaser’s recovery against a breaching vendor is generally limited to restitutionary damages, including return of the deposit and interest (and, where proven, related out-of-pocket items rather than expected resale profit).
- A purchaser’s separate, more favorable resale arrangement does not itself convert a vendor’s non-bad-faith breach into a basis for awarding expected profits as damages.

## Conclusion

The court held that because the sellers’ breach was not proven to be in bad faith, the purchaser could not recover loss-of-bargain damages based on an anticipated resale profit and was limited to return of the deposit with interest.


Wolofsky v. Behrman, 454 So. 2d 614 (Fla. Dist. Ct. App. 4th Dist. 1984)