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Contracts • Excuse of Non-Performance
K#120
Legal Definition
Anticipatory repudiation occurs when the promisor, prior to the time set for performance of their promise, unambiguously indicates they will not perform. The repudiation must consist of an unambiguous statement or conduct, and the contract must be a bilateral contract with unperformed duties on each side.
Plain English Explanation
Anticipatory Repudiation is a super fancy way of saying "a party has made it incredibly clear that they have no intention of performing their obligations under a contract." When that happens, it excuses the other party from having to perform, as well as enables a few remedies that we will discuss in other cards.
Why is this important? Because when two parties enter into a contract, they are both bound and obligated to perform. However, when it is clear that one party has no intention of performing, or even refuses to perform, the law doesn't want to force the non-breaching party that isn't acting badly to continue through with the bargain.
Why is this important? Because when two parties enter into a contract, they are both bound and obligated to perform. However, when it is clear that one party has no intention of performing, or even refuses to perform, the law doesn't want to force the non-breaching party that isn't acting badly to continue through with the bargain.
Hypothetical
Hypo 1: Bob owns a statue that Sam really likes. Sam asks Bob if he can buy the statue. Instead, Bob says, "If you paint my house within a week, I will give you the statue." Sam agrees. Bob and Sam now have a legally binding, bilateral agreement where Bob is obligated to give Sam his statue and Sam is obligated to paint Bob's house within a week. A few days later, Sam sees Amy walk down the street holding the statue. Sam asks where she got it, and she says, "Bob sold it to me!" Result: Bob selling Amy the statue, and Sam being aware of it, acts as unambiguous conduct that Bob will not perform his obligation under the contract. After all -- how can he? His obligation was to give Sam the statue, and the statue is no longer Bob's property to give. This acts as anticipatory repudiation.
Visual Aids
Related Concepts
How is performance affected when the subject matter of the contract is damaged or destroyed?
Under common law, is late performance a material breach?
Under common law, when is counter-performance excused?
Under common law, when may a breaching party recover in a divisible contract?
Under contract law, what is a modification?
What is excuse due to improper performance?
What is frustration of purpose?
What is impracticability?
What is the doctrine of impossibility?
What level of compliance is required to satisfy an express condition?
What options does the non-breaching party have in response to an anticipatory repudiation?
