R2d § 253
Effect of a Repudiation as a Breach and on Other Party's Duties
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach. (2) Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance.
Professor's notes
Section 253 gives repudiation two legal effects. Subsection (1): a repudiation that occurs before the repudiating party's performance is due gives rise to a claim for damages for total breach. Subsection (2): a repudiation discharges the other party's remaining duties of performance. Together, these two consequences are the doctrinal content of anticipatory repudiation.
The doctrinal move is to treat a pre-performance statement of non-performance as equivalent, for remedy purposes, to an actual total breach. Without § 253, a promisee facing repudiation would have to wait for the performance date to arrive, continue her own preparations, and sue only then. Section 253(1) lets her sue immediately. Section 253(2) lets her stop her own performance without incurring liability. The section does not require her to act immediately — UCC § 2-610(a) and the R2d both recognize a commercially reasonable wait-and-see period.
Paradigm fact pattern: On January 1, A and B contract for delivery of widgets on March 1. On February 1, B tells A it will not perform. Under § 253, A has a claim for total breach as of February 1 and may immediately cease her own performance obligations. McCloskey v. Minweld in Chapter 21 illustrates what does not count as repudiation; Hornell Brewing v. Spry illustrates what does.
Common student confusion: treating § 253 as requiring immediate suit. The non-repudiating party has options. She may wait a commercially reasonable time (§ 2-610(a) under the UCC), urge retraction, or sue immediately. Ask students: what is the risk of waiting? What is the risk of suing too soon? That question maps onto the McCloskey/Hornell contrast.
Connect to R2d § 250 (definition of repudiation), R2d § 256 (retraction of repudiation), and UCC § 2-610 (anticipatory repudiation in goods contracts). Chapter 21 uses McCloskey and Hornell Brewing to bracket the boundary: § 253 applies only to clear, unequivocal repudiations, not to expressions of difficulty or requests for accommodation.
Text
R2d § 253. Effect of a Repudiation as a Breach and on Other Party’s Duties.
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
(2) Where performances are to be exchanged under an exchange of promises, one party’s repudiation of a duty to render performance discharges the other party’s remaining duties to render performance.
[VERIFICATION REQUIRED: subsection text drafted from memory; cite-check against ALI Restatement (Second) of Contracts official text before publication]