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4.2-25 Defense - Anticipatory Breach (Repudiation)
New June 1, 2012
The defendant claims that the plaintiff committed
an anticipatory breach of the contract.
An anticipatory breach of contract occurs when one party to a contract indicates
that (he/she/it) will not perform (his/her/its) obligations under the contract
before the time for performance has arrived.
This indication can occur either by a statement that the party will not
perform or by an act that indicates an unwillingness to perform.
If you find that the plaintiff did anticipatorily breach the
contract by <describe>, then the defendant had no
obligation to perform (his/her/its) duties under the contract.
However, this is only a valid defense to the plaintiff’s claim
if you find that the defendant, as of the time of the
plaintiff’s repudiation, had fulfilled his duties under the
contract.
Authority and Notes
Pullman, Comley, Bradley & Reeves v.
Tuck-it-away, Bridgeport, Inc., 28
Conn.
App. 460, 465, cert. denied, 223 Conn. 926
(1992). The so-called nonbreaching
party’s ability to recover for anticipatory breach is limited by his ability to
perform under the contract. “ln order to
establish that the defendants anticipatorily breached the contract, the
plaintiff must be able to show that it would have been able to perform its
obligations on the date set for performance.”
Land Group, Inc. v. Palmieri, 123 Conn. App. 84, 93 (2010).
The Restatement (Second) of Contracts § 254 (1) states that “[a] party’s
duty to pay damages for total breach by repudiation is discharged if it appears
after the breach that there would have been a total failure by the injured party
to perform his return promise.” 2
Restatement (Second), Contracts § 254, p. 290 (1981).
“Repudiation can occur either by a statement that the promisor
will not perform or by a voluntary, affirmative act that
indicates inability, or apparent inability, substantially to
perform.” Gilman
v. Pedersen, 182
Conn.
582, 584 (1981).
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