Anticipatory Repudiation

Anticipatory repudiation occurs when one party lets it be known through his or her own words or actions that he or she does not plan to meet the conditions of the contract. Repudiation occurs when two parties enter into a contract and one party does not complete his or her part of the agreement. In other words, he or she is breaching the contract. It becomes the other party who is willing to meet the conditions of the contract can obtain remediation from the other party using anticipatory repudiation.

If any of the individuals that have entered into a contract decide not to fulfill it before the fulfillment date, the other party acquires a loss. Therefore, the other party may take the following options:

  1. Give the first party additional time to fulfill the requirements of the contract.
  2. Seek another solution even though he or she may have stated that he or she will wait to see if the other party performs.
  3. Either cancel or continue with provisions to salvage unfinished goods or parts of the contract that have not been breached.

The other party that has not repudiated the contract can decide to continue with his or her part of the contract. However, if the decision to continue will make his or her level of damages increase, then it is in his or her best interest not to continue. The non-breaching party can try to make the other party fulfill his or her part of the contract. When this occurs, the non-breaching party still has the right to seek damages while waiting for the other party to perform.

How is Anticipatory Repudiation Recognized?

Anticipatory Repudiation can be recognized by the courts in several ways. One way is when someone makes a direct statement that the or she will not fulfill his or her part of a contract, and the courts will then see this as express repudiation. If the repudiating party has made it so the other party will not be able to complete his or her part of the contract under any circumstances, this is seen as anticipatory repudiation. An example of this is if two people enter into business together and plan to use their profits to pay back loans, but one party acts carelessly on purpose, causing the downfall of their business and their inability to pay back their loans.

How is Anticipatory Repudiation Handled in Contracts for Sale of Goods?

If the repudiating party is under the belief that the other party will not fulfill his or her part of the contract, then under the Uniform Commercial Code (UCC), he or she is able to require assurance that it will be fulfilled. Furthermore, he or she has the ability to not adhere to the contract until receiving assurance. The other party is usually required to provide the assurance within 30 days. If he or she cannot provide assurance, the contract will be made void.

How Does Someone Take Back His or Her Repudiation?

If someone decides that he or she now wants to fulfill his or her part of a contract after repudiation. He or she would need to make it clear to the other party that he or she will now conform to the contract. He or she can also grant the other party that did not breach the contract some form of compensation for the delay in the contract fulfillment.

What if Receiving Payment Is the Only Relief?

The party that has not repudiated the contract has to wait until after the due date that the payment should have been received.

How Does The Non-Breaching Party Mitigate?

The party that has not repudiated the contract has to quickly seek damages and not let them continue to get worse once the other party has repudiated the contract. This is why some parties reasonably believe that repudiation is needed in order to give the other party time to cut his or her losses. This in return lessens the monetary damages that may be given in lawsuit on breach of contract.

What Types of Relief and Damages Can Be Awarded?

The non-breaching party usually has three options:

  1. Sue for repudiation and try to receive compensation for damages.
  2. Sue for repudiation but have the other party actually perform his or her duties as outlined in the contract.
  3. Ask to have their own duties canceled out from the contract.

If you need help with anticipatory repudiation, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.