In one line
Anticipatory breach occurs before performance is due, while present breach occurs when an obligation due now is refused or improperly performed.
After this note, you should be able to
- Recognize express and implied repudiation.
- Explain the promisee's election after anticipatory breach.
- Avoid confusing termination with automatic cancellation.
Two timings of breach
The timing of non-performance affects when the innocent party may act.
- Anticipatory breach
- Before the due date, a party clearly refuses to perform or disables itself from performing the promise in its entirety.
- Present breach
- A party fails, refuses or performs defectively when performance is due or while it is being carried out.
- Seriousness
- Section 39 concerns refusal or disability concerning the promise in its entirety, not every minor threatened defect.
The promisee must elect
Anticipatory breach gives the innocent party a choice.
- Accept repudiation
- The promisee may terminate and claim relief without waiting for the due date.
- Keep contract alive
- The promisee may affirm and wait for performance, but must remain ready to perform and takes the risk of a later event discharging the contract.
- Acquiescence
- Words or conduct that accept continued performance can affect the right to terminate under Section 39.
Work through the facts
Illustration
Facts
A agrees to deliver machinery on 1 October. On 1 August, A sells the only machinery to another buyer and states that delivery to B will not happen.
Likely result
A's statement and disabling act amount to anticipatory breach. B may accept the repudiation immediately or keep the contract alive until the due date.
What to learn
State the election and its consequences. Repudiation does not force only one response.
Cases with a purpose
Landmark judgments
Learn the rule and where to use it. A case name without its legal function adds very little to an answer.
Hochster v. De La Tour
Further reading(1853) 2 E&B 678
Principle: The innocent party may accept a clear repudiation and sue before the contractual date for performance arrives.
Use in an answer: Use it as the classic authority for immediate action after anticipatory breach.
Frost v. Knight
Further reading(1872) LR 7 Ex 111
Principle: A definite refusal before the event fixed for performance can create an immediate cause of action when the repudiation is accepted.
Use in an answer: Use it where a future obligation is expressly renounced in advance.
For a 10-mark answer
Answer structure
- Identify the promise and its due date.
- Show the words or conduct amounting to refusal or disability.
- Classify the breach as anticipatory or present.
- State the promisee's election and resulting remedy.
Common mistakes
- Calling every expression of doubt a repudiation.
- Assuming anticipatory breach automatically ends the contract.
- Ignoring the risk of keeping the contract alive.
Before you close the tab
Quick revision
- Anticipatory breach occurs before the due date.
- Repudiation may be express or shown by disabling conduct.
- The promisee may terminate or affirm.
- Present breach occurs when performance is currently due.
Test yourself
- What conduct can amount to anticipatory breach?
- What choices does the promisee have?
- What risk follows from keeping the contract alive?
Short answers
Frequently asked questions
Must the innocent party wait until the due date?
No. A clear anticipatory repudiation may be accepted immediately, allowing the innocent party to terminate and pursue relief.
Does anticipatory breach automatically cancel the contract?
No. The innocent party may accept the repudiation or affirm the contract and keep it alive.
Primary sources
This is an educational study note. Always read the bare provision and the full judgment before relying on a proposition in research or practice.