Anticipatory Repudiation

If promises are mutually dependent, they may be:

(1) precedent: performance by one party must come before performance by the other
(2) subsequent: performance by one party to come after performance by the other has
been completed
(3) concurrent: performance of promise at the same time

K & G Construction v. Harris

Modern Rule: presumption that mutual promises in a K are dependent

-performance by one is conditioned on performance by the other

Here, subcontractor's promise was precedent to contractors promise of payment

Sub's destruction of wall served as a material breach--> Contractor justified in refusing

to make Aug 10th payment.
-Contractor viewed sub's breach as only partial
-Sub's failure to continue performance constituted breach
-Contractor able to hold sub liable for breach

§ 241: To determine whether failure to perform is material, consider:

(a): extent injured party will be deprived of the benefit reasonably expected
(b): extent to which injured party may be compensated for the part-benefit deprived
of
(c): extent to which the party failing to perform will suffer forfeiture
(d): likelihood party failing to perform will cure his failure
(e): extent to which behavior of party failing to perform comports with standards of
good faith/ fair dealing.

§ 242: In determining when one party's uncured material failure to perform discharges the
other party's duty consider:
(a): § 241
(b): reasonably apparent to injured party that delay may prevent or hinder
reasonable substitute arrangements
(c): material failure to perform on a stated day does not discharge the other party's
duties UNLESS lang otherwise stipulates

Walker & Co. v. Harrison

Issue: Did Walker materially breach his performance upon the K thereby allowing D to
repudiate?

Holding: No
 P's failure to perform certain upkeep on the sign did not constitute material breach
allowing D to repudiate.

Repudiation by D therefore is itself a material breach.

Zulla Steel v. A&M Gregos

Facts:
D: contractor
P: sub

P left job unfinished when D failed to pay progress payments in accordance with the K.

PH:
Trial court held for P stating D had committed a material breach and P was entitled to
repudiate.
Affirmed

Anticipatory Repudiation

Hochster v. De La Tour

P: courier to accompany D on a trip

D rescinds K, does not want to travel
P sues D for breach

Held for P

Daniels v. Newton

Against De La Tour
Renunciation of an agreement before the designated time of performance is rescission
and excusable.

Equitable Trust

Similar to De la Tour
A K for a certain time includes within it by implication an engagement not deliberately
to compromise the probability of performance

Wholesale Sand v. Decker

P: Wholesale
 D: Decker
P to perform construction work for D.
P did not perform duties in a timely manner. D terminated K and hired another to do
the work.

Issue: Does P's conduct constitute an anticipatory repudiation of the K?

Holding: Yes.

Rule: Anticipatory repudiation of a K is a unequivocal manifestation of intent on the

part of the repudiator that he will NOT render the promised performance when the
time fixed for it in the K arrives.

-manifestation of such intent achieved by words or conduct

Unique v. Zotos

Rule: If a party to a K demands a performance from the other party not K'ed for, making
such performance conditional and not being met is the same as anticipatory
repudiation.

US v. Seacoast Gas

Seacoast entered into K to supply gas to a federal housing project

Seacoast intended to cancel K due to FHA's alleged breach
-letter served as anticipatory breach
-did not timely repudiate letter---> FHA K'ed with another

Held for FHA/US

§ 250: Repudiation is the obligor indicates it will breach by non-performance

§ 253: Repudiation gives rise to a claim for damages and discharges the other party of their
duty
§ 256: Nullification of repudiation acceptable if such notification comes to the attention of
the injured party before he materially changes his position in reliance on the repudiation.