Hochster v. De La Tour

2 El. & Bl. 678, 118 Eng. Rep. 922 (Q.B. 1853)

Court of Queen's Bench · 1853

Rule

A renunciation of a contract before the time fixed for performance is itself a breach. The injured party may sue immediately on the repudiation; she is not required to wait for the performance date and is free to arrange substitute transactions in the interval.

Learning outcomes

By the end of working with this case, you can:

Facts

In April 1852, De La Tour engaged Hochster to act as a courier on a continental tour set to begin on June 1. In May, before performance was due to begin, De La Tour wrote to Hochster repudiating the engagement and refusing to take him. Hochster sued in May, before June 1, alleging breach. De La Tour argued that no breach had yet occurred because the time for performance had not arrived.

Holding

The Court of Queen’s Bench held for Hochster. A definite renunciation of a contract before the time of performance is itself a breach, on which the injured party may sue at once. Hochster did not have to wait until June 1.

Reasoning

Lord Campbell reasoned that to require the promisee to wait would compel her to remain in readiness, unable to take other engagements, on the chance that the promisor might change his mind. That posture serves no party’s legitimate interest. A clear and unequivocal renunciation gives the injured party the present right to treat the contract as broken, to sue for damages, and to take steps in mitigation, including substitute employment. The court took care to require that the repudiation be unequivocal; a mere expression of doubt or a request to renegotiate does not amount to anticipatory breach.

Why it matters

Hochster v. De La Tour is the foundational anticipatory-repudiation case in the common law. The doctrine it announced is now codified in UCC § 2-610 and Restatement (Second) §§ 250–253. The case shapes the modern law of repudiation by recognizing that contract law must respond to the realities of advance commitments and the need for promisees to redeploy their resources once the bargain is plainly off.

The trap

Reading the case as authorizing the non-breaching party to do nothing until performance falls due. The opposite is true. Hochster permits an immediate suit and immediate mitigation. The mitigation duty under R2d § 350 attaches at the repudiation, not at the original performance date. Students who hear 'election' and decide 'wait and see' set themselves up to lose damages for failure to mitigate.

The operational intuition the case is designed to break. Naming the trap is what the Socratic exchange is for.

Socratic ladder

The professor's scaffold for the in-class exchange. Each rung is a stage; the questions are scripted prompts, not the punchline.

Surfacing · 45 sec

Q. Two parties contract in April for the defendant to employ the plaintiff as a touring courier starting June 1. On May 11, the defendant writes that he has changed his mind and will not need the plaintiff. Plaintiff sues on May 22, before June 1. Defendant argues no breach is possible until the performance date arrives. Operationally, can the plaintiff sue now or must he wait?

Look for: Split intuitions. Some students say the plaintiff should wait because the performance date has not arrived. Some say the writing makes the suit ripe now. Get both on the table.

Holding · 45 sec

Q. What did the Court of Queen's Bench hold?

Look for: Plaintiff could sue immediately. A clear renunciation before the time for performance is itself a breach and gives the injured party a present cause of action.

Reasoning · 120 sec

Q. Lord Campbell could have made the plaintiff wait until June 1. Doctrinally clean: no performance was yet due. Why does the court let the plaintiff sue in May?

Trap: Students argue from fairness: it would be unfair to make the plaintiff sit idle. That is the conclusion, not the doctrine. Push them for the structural reason.

Board: R2d § 250: a definite and unequivocal renunciation before performance is due is a breach.

Push back: What would the plaintiff have to do during May if the court required him to wait? Could he take a competing job? Could he mitigate? What does requiring him to wait actually cost?

Push to: An unequivocal renunciation before the performance date is itself a breach. The promisee receives a present right to sue, to take steps in mitigation including substitute engagement, and to redeploy resources. R2d § 250 and UCC § 2-610 codify the rule. The doctrine respects the non-breaching party's need to act on the breach as soon as the breach is plain.

Hypothetical · 90 sec

Vary. Same facts, but the defendant's May letter does not flatly cancel; it says he is having second thoughts and may not be ready by June 1. Plaintiff treats the letter as a repudiation and sues. Same result?

Point: The line between repudiation and expressions of doubt. Hochster requires unequivocal renunciation; a hedge or expression of difficulty is not enough. The remedy for doubt is the demand for adequate assurances under R2d § 251 and UCC § 2-609, not an immediate suit. Tests whether students see the threshold the doctrine carries.

Integration · 60 sec

Q. An employer rescinds a job offer two months before your start date. What does Hochster tell you to do that morning, and what would a lawyer who has read R2d § 350 tell you not to do? And why did the common law need this rule in 1853, what changed about commerce that made the wait-and-see default intolerable?

Land: Anticipatory repudiation as the rule that aligns legal remedy with commercial reality. R2d §§ 250-253 and UCC § 2-610 carry the modern doctrine. The mitigation duty starts at repudiation, not at the original performance date. The case sits at the head of the repudiation chapter and frames every excerpted case after it.

Hochster v. De La Tour, 2 El. & Bl. 678, 118 Eng. Rep. 922 (Q.B. 1853).