Anticipatory Breach – a breach of contract caused by a party’s unequivocal indication that the party will not perform when performance is due; the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages

anticipatory breach:
(1889)

1. A breach of contract caused by a party’s anticipatory repudiation, i.e., unequivocally indicating that the party will not perform when performance is due.  *  Under these circumstances, the nonbreaching party may elect to treat the repudiation as an immediate breach and sue for damages. — aka breach by anticipatory repudiation; breach by renunciation; constructive breach. See anticipatory repudiation under REPUDIATION. [1]

1. A breach of contract committed before the time for performance has arrived, being the outcome of words or acts evincing an intention to refuse performance in the future, that is words or acts in repudiation or renunciation of the contract.  17 Am J2d Cont §§ 448, 449.
     A good illustration of the application of the doctrine appears in the law of sales and contracts to sell.  46 Am J1st Sales § 194. [2]

1. The announced intention of a party to a contract that she does not intend to perform her obligations under the contract; an announced intention to commit a breach of contract.
     Compare repudiation of contract. [3]

     Excerpt from P.S. Atiyah’s An Introduction to the Law of Contract (3d ed. 1981):

     “A repudiation by one party may occur before the time for performance has arrived.  Such a repudiation is called an anticipatory breach, and it gives the innocent party the option of treating the contract as terminated at once and suing for damages immediately if he chooses or, alternatively, of waiting until the time of performance has arrived, and then again calling on the other party to perform.  Should he choose the latter course he runs the risk that the contract may possibly become frustrated in the interim, in which case he will have lost his right to damages. [4]

References:

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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: P.S. Atiyah, An Introduction to the Law of Contract 298 (3d ed. 1981)

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