anticipatory repudiation

Question 1

Anticipatory repudiation (prospectice non-performance)
Is

Answer 1

breach that occurs before there is any breach by non-performance

Question 2

The aggrieved party has three options:

Answer 2

1. Treat the contract as terminated, its remaining duties of performance as discharged, and bring a claim for damages for total breach.
2. Insist on the other partys performance and urge retraction of the repudiation
3. gnore the repudiation and wait for the time for performance
   This is vulnerabl position because damages can run up in the time waiting for performance and a party is typically charged with the duty to mitigate.

Question 3

An express repudiation

Answer 3

must be clear, unequivocal refusal to perform

Question 4

implied repudiation

Answer 4

results when the conduct of the promisor makes it impossible to substantially perform his promise.

Question 5

Retraction of Anticipatory Repudiation

Answer 5

Until the repudiating partys next performance is due, he can retract his repudiation unless the aggrieved party has since the repudiation cancelled or materially changed his position or otherwise indicated that he considers the repudiation to be final

Question 6

Right To Adequate Assurance of Performance

Answer 6

• if reasonable grounds for insecurity
• if goods writing, oral if not
• demand adequate assurance
• may suspend performance
• reasonable time or 30 days if not it is repudiation

Question 7

When the aggrieved party brings suit, it must show that

Answer 7

• had there been no repudiation, it would have been ready, willing, and able to perform its end of the bargain.
• In determining damages, a court will consider any costs saved in not having to perform as well as any damages that could have been avoided by appropriate action.
• The aggrieved party is bound by the duty to mitigate damages.

Question 8

How soon must the non-repudiating party act?

Answer 8

• The aggrieved party may “for a commercially reasonable time awat performance.
• But if he awaits performance beyond a commercially reasonable time, he cannot recover resulting damages which he should have avoided

Question 9

Buyers damages states that the measure of damages

Answer 9

for repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages, but less expenses saved in consequence of the seller’s breach

Question 10

Anticipatory breach does not apply

Answer 10

• where there is a repudiation of an executory contract for the payment of money only.
• The doctrine of anticipatory breach does not apply in this situation because there are no longer executory obligations on both sides—only on the paying party.
• For anticipatory breach it must be before either party has performed (i.e, performing - saying not paying before due date - is not under anticipatory)