Anticipatory Breach
Anticipatory breach (anticipatory repudiation) occurs when a party clearly and unequivocally indicates before performance is due that they will not perform their contractual obligations, giving the non-breaching party immediate rights to remedies.
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Exam Tip
Anticipatory breach requires CLEAR and UNEQUIVOCAL repudiation. Hochster v. De La Tour = can sue immediately.
What is Anticipatory Breach?
Anticipatory breach occurs when one party unambiguously communicates an intention not to perform before performance is due.
Requirements
| Requirement | Description |
|---|---|
| Clear and Unequivocal | Definite, not ambiguous |
| Before Performance Due | Before time for performance |
| Material Breach | Goes to essence of contract |
| Communicated | Communicated to other party |
Options for Non-Breaching Party
| Option | Description |
|---|---|
| Immediate Breach | Sue immediately |
| Wait and See | Await performance deadline |
| Demand Assurances | UCC Section 2-609 |
| Suspend Performance | Stop preparing |
Retraction
Repudiation may be retracted UNLESS non-breaching party has:
- Materially changed position
- Indicated repudiation is final
- Commenced litigation