Anticipatory Repudiation

AuthorJohn D. McCamus
An anticipatory repudiation of an agreement occurs when one party
manifests, t hrough words or conduct, an intention not to perform or
not to be bound by provisions of the agreement that require perfor-
mance in the future. We have previously considered whether failure to
perform a contractual obligation at the ti me stipulated for performa nce
constitutes a repudiatory breach of contract entitling the party not in
breach to terminate the agreement and pursue such remedies as may
be available with respect to losses caused by the breach of contract.1 In
this chapter, we consider whether an anticipatory repudiat ion of con-
tractual obligations may similarly give rise to an ent itlement on the
part of the innocent party to bring the agreement to an end and pur-
sue any available remedies for contractual breach. The basic approach
taken by the common law to thi s question holds that an anticipatory
repudiation of a future obligation has the same effect on the rights of
an innocent party a s an actual breach of the obligation in question.
Thus, if an actual breach of the provision in question would entitle the
innocent party to treat the contract as discharged by breach, a n antic-
ipatory repudiation of that obligation would confer a similar option on
the innocent party. More than this, however, it is well est ablished that
where the innocent party elect s to disaff‌irm the contract on the basis
1 See Chapter 15.
Anticipator y Repudiation 747
of an anticipatory repudiation, the innocent pa rty may immediately
commence an action for breach. The innocent party need not postpone
the commencement of such an action until the date for performance
has arrived. Although this proposition is often referred to as the doc-
trine of anticipatory breach, it has frequently been observed that it is
diff‌icult to see how one could breach an obligation prior to the date for
performance. Accordingly, anticipatory rep udiat ion is perhaps a more
felicitous description of the factual phenomenon.
The general principle was established in t he leading decision in
Hochster v De La Tour.2 The plaintiff in thi s case had been hired on 12
April 1852 by the defendant to act as the defendant’s courier on a trip
abroad. The assignment was to begi n on 1 June of that year. On 11
May the defendant wrote to the plaint iff and cancelled the assignment.
The plaintiff immed iately commenced an action for damage s for breach
of contract. Prior to 1 June, the plaintiff secured alternative employ-
ment with a third pa rty to commence on 4 June. The defendant had the
temerity to argue that the plaintiff, being him self in breach of contract
by accepting alternative employment prior to the date for performance
was himself in breach of contract and therefore not entitled to sue. The
jury’s verdict for the plaintiff wa s upheld on appeal. Lord Campbell CJ
rejected the argument that the plaintiff was entitled to relief only if he
had maintained his availability for work for the defendant on 1 June,
reasoning as follows:
it is surely much more rational, a nd more for the benef‌it of both par-
ties, that, a fter the renunciation of the agreement b y the defendant,
the plaintif f should be at liberty to consider h imself absolved from
any future perfor mance of it, retaining hi s right to sue for any dam-
age he has suffered from t he breach of it. Thus, in stead of remaining
idle and laying out money in prep arations which must be useless, he
is at liberty to s eek service under anothe r employer, which would go
in mitigation of the da mages to which he would otherwis e be entitled
for a breach of the contract.3
As has often been pointed out, however, this reasoning does not nec-
essarily lead to the conclusion that the plaintiff should be entitled to
bring an action immedi ately after the anticipatory repudiation. It would
be suff‌icient to meet Lord Campbell’s concern that the plai ntiff be in a
position to mitigate to hold that the innocent party, when confronted
2 (1853), 2 El & Bl 678, 118 ER 922 (QB). And see P Mitchell, “Hochste r v De La
Tou r (1853)” in C Mitchel l & P Mitchell, eds, Landmark Case s in the Law of
Contra cts (Oxford: Hart P ublishing, 2008) ch 5.
3 Ibid at 926 (ER).

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