In certain matters, there is an affirmative defense referred to as the “voluntary payments” defense. This defense states, “where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered.” Avatar Properties, Inc. v. Gundel, 48 Fla.L.Weekly D1272c (Fla. 6th DCA 2023) quoting City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959).  This voluntary payments defense could be construed as a “gotcha” defense, right? Unfair!  You voluntarily made the payment with knowledge of the facts; therefore, you are s**t out of luck when it comes to recovering the potentially wrongful payment.

Well, guess what?  This voluntary payments affirmative defense does NOT apply in contract disputes. This is codified by Florida Statute s. 725.04 which states: “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.”  Fla.Stat. s. 725.04. See also Avatar Properties, supra (explaining voluntary payment defense does not apply in contract cases and even in non-contract cases it doesn’t apply if payment made under coercion or compulsion).

Thus, if you wrongfully make a payment that you were not required to make under a contract, you are not s**t out of luck when it comes to legally pursuing the recovery of this payment.  The voluntary payments affidavit defense does not apply to bar the claim. In contract disputes, you shouldn’t rely on this defense and you should be cautious about asserting it.

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