Enforcing the Terms of a Lost Instrument--Florida

Factual Questions
1

I was just browsing and came across this in the FL Code:

[QUOTE=FL Code]
673.3091 Enforcement of lost, destroyed, or stolen instrument.–

(1) A person not in possession of an instrument is entitled to enforce the instrument if:

(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
[/QUOTE]

(bolding mine)
How would someone possibly prove the terms of an instrument that he is not in possession of?

2

I’m sure some of the legal types can come up with general principles, but one way to prove many things in legal situations is past compliance.

For example, let’s say you are partners with someone in a business, and you lose the operating agreement in a hurricane that destroys the office. If you’ve been splitting profits 50/50 from the beginning of the partnership, that’s evidence that a contractual agreement existed to split profits. If the contract had specified something other than 50/50, one of you would surely have complained at the very beginning.

3

He may be in possession of a copy of the instrument, or he may be able to locate the final draft, or whoever drafted the instrument at the time may be able to give evidence as to what it said.

4

Short version: F.S. 673.3091 refers to lost negotiable instruments, as opposed to other document types, which may be governed by F.S. 90.953 or F.S. 71.011.

Under the latter two (specifically, 90.953, which is a part the rules of evidence for home mortgage default proceedings, etc.), a copy of the original is not admissible. Under 673.3091, a copy can be produced if the original cannot be produced.