A. Introduction

• Author: John D. McCamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 651-654

Page 651

An anticipatory repudiation of an agreement occurs when one party manifests, through words or conduct, an intention not to perform or not to be bound by provisions of the agreement that require performance in the future. We have previously considered whether failure to perform a contractual obligation at the time stipulated for performance 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.¹In this chapter, we consider whether an anticipatory repudiation of contractual obligations may similarly give rise to an entitlement on the part of the innocent party to bring the agreement to an end and pursue any available remedies for contractual breach. The basic approach taken by the common law to this question holds that an anticipatory repudiation of a future obligation has the same effect on the rights of an innocent party as 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, an anticipatory repudiation of that obligation would confer a similar option on the innocent party. More than this, however, it is well established that

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where the innocent party elects to disaffirm the contract on the basis of an anticipatory repudiation, the innocent party 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 doctrine 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 repudiation is perhaps a more felicitous description of the factual phenomenon.

The general principle was established in the leading decision in Hochster v. De La Tour.²The plaintiff in this case had been hired on April 12, 1852, by the defendant to act as the defendant’s courier on a trip abroad. The assignment was to begin on June 1st of that year. On May 11th the defendant wrote to the plaintiff and cancelled the assignment. The plaintiff immediately commenced an action for damages for breach of contract. Prior to June 1st, the plaintiff secured alternative employment with a third party to commence on June 4th. The defendant had the temerity to argue that the plaintiff, being...