This chapter addresses anticipatory repudiation and the practical problem of what the other party may do when performance suddenly seems doubtful. The tension of Shelob’s Lair captures the doctrine’s focus on unmistakable warning signs and the need for adequate assurance before proceeding.
Doctrinal map
Anticipatory repudiation (R2d §§ 250, 253; UCC § 2-610) lets the non-breaching party treat the contract as breached before performance is due, provided the repudiation is unequivocal. Hochster v. De La Tour is the founding case. Where the signal is doubt rather than repudiation, R2d § 251 / UCC § 2-609 supply the demand-for-adequate-assurance procedure: a written demand triggers a duty to respond within a reasonable time; failure to respond is itself a repudiation.
Key Sources
Key Rules
- R2d § 250: Anticipatory repudiation = clear statement that party will not perform
- R2d § 251: Demand for adequate assurance of performance
- UCC § 2-609: Right to adequate assurance
Cases
- Hochster v. De La Tour 2 El. & Bl. 678, 118 Eng. Rep. 922 (Q.B. 1853) 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.
- McCloskey & Co. v. Minweld Steel Co. 220 F.2d 101 (3d Cir. 1955) An anticipatory repudiation requires a definite, unequivocal, and absolute refusal to perform. A request for help in securing materials, or an expression of doubt about ability to perform, is not itself a repudiation and does not authorize the other party to treat the contract as breached.