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4.2-26 Anticipatory Breach (Repudiation)
New June 1, 2012
The plaintiff claims that the defendant 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 defendant did anticipatorily breach the
contract by <describe>, then the plaintiff may recover
damages from the defendant without having to await the time for
the defendant’s performance under the contract.
In order to recover damages based on an anticipatory breach of
contract, the plaintiff must also prove that (he/she/it) would
have been able to perform under the contract on the date set for
performance.
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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