anticipatory breach of contract

where a party to a contract intimates, or it becomes clear, that he is not going to perform on the due date, then there is said to be anticipatory breach. The difficulty is that the innocent party could, in many cases, in the time available mitigate his loss by finding another to perform. The unfortunate thing about that would be that the contract-breaker would escape liability. It is accepted that the innocent party may decline to accept the repudiation and instead sue on the due date, when, of course, the losses may be higher than at the anticipatory date. The most dangerous thing about the doctrine for a contract-breaker is the rule that a party may completely ignore the breach and himself perform on the due date, assuming he does not require the contract-breaker's assistance in so doing, and then sue for the obligations under the contract. The benefit of this course is that the claim is one for a due debt, not for damages, and there is therefore no need to mitigate loss. See also CANCELLATION.

Collins Dictionary of Law © W.J. Stewart, 2006

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cancellation

References in periodicals archive

(8) Instruction 416.23, Anticipatory Breach, also falls within that group, and is given if the plaintiff claims anticipatory breach of contract to prove that the defendant indicated he or she "would not or could not perform the contract" and that plaintiff was "willing and able to perform the contract." (9)

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Rather, the 2002 notice was an anticipatory breach of contract. WIS knew Wronko was opposed to the change in severance terms and, by continuing the employment, WIS must be taken to have agreed to Wronko's position.

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4th DCA 1989) ("To obtain damages for anticipatory breach of contract, the purchaser must also show that he was ready, willing, and able to perform the contract.") (citing Hosp.

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