anticipatory breach

An anticipatory breach happens when, before performance is due, a party clearly refuses to perform, or disables himself from performing, the whole of his promise. Under s.39 of the Contract Act the other party may then put an end to the contract, unless he has signified acquiescence in its continuance.

The innocent party has a choice. He may accept the repudiation and sue for damages at once, without waiting for the due date; or he may keep the contract alive, in which case it remains open for both sides and may be affected by later events such as frustration. Damages are generally measured by reference to the date fixed for performance, subject to the duty to mitigate.

Example

When the singer wrote in March that she would not perform at the July concert, it was an anticipatory breach and the organiser could sue immediately under s.39.

In Indian law

• Section 39, Indian Contract Act, 1872 (refusal of party to perform promise wholly)
• Hochster v. De La Tour (English Queen's Bench, 1853)

See also

breach of contract · damages · frustration · rescission

Read more in the study notes

• Contingent contracts (Contract I)
• Breach of contract: anticipatory and actual (Contract I)
• Damages and remoteness (Contract I)
• Unpaid seller and remedies for breach (Contract II)
• Acceptance and rejection of goods, the unpaid seller, and frustration (International Trade Economics)