UCC § 2-610
Anticipatory Repudiation
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (a) for a commercially reasonable time await performance by the repudiating party; or (b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and (c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).
Professor's notes
Section 2-610 states the UCC's anticipatory repudiation rule for goods contracts. When either party repudiates with respect to a performance not yet due whose loss substantially impairs the contract's value, the aggrieved party may (a) await performance for a commercially reasonable time, (b) resort to any remedy for breach immediately, or (c) in either case suspend its own performance. The statute explicitly permits the aggrieved party to choose to wait and urge retraction without losing the right to sue.
The doctrinal work is to give the aggrieved party a genuine election. The common-law anticipatory repudiation rule (R2d § 253) creates the same options, but § 2-610 makes the wait-and-see choice explicit and sets a "commercially reasonable time" standard rather than an open-ended one. The "substantially impairs the value" threshold is also a limitation: not every repudiation triggers § 2-610; only repudiations that go to the heart of the deal do.
Paradigm: Buyer and seller have a January contract for delivery of specialized equipment in June. In March, the seller announces it cannot perform. Under § 2-610(b), the buyer may immediately treat this as a total breach and pursue damages. Under § 2-610(a), the buyer may wait through a commercially reasonable period — perhaps while securing a replacement supplier — before suing. The Hornell Brewing v. Spry materials in Chapter 21 show how the accumulation of circumstances can convert insufficient performance into repudiation for § 2-610 purposes.
Students often assume the aggrieved party must sue immediately or lose rights. Press them on § 2-610(a): the buyer who waits does not waive the breach. Ask: when does the commercially reasonable waiting period end? Ask: what happens if during the wait the repudiating party retracts — see § 2-611.
Connect to R2d § 253 (anticipatory repudiation at common law), UCC § 2-611 (retraction of repudiation), and the Chapter 21 materials on McCloskey v. Minweld (what does not constitute repudiation) and Hornell Brewing v. Spry (what does).
Text
UCC § 2-610. Anticipatory Repudiation.
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may
(a) for a commercially reasonable time await performance by the repudiating party; or
(b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
(c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).
Note: The supplement reproduces this provision as N.H.R.S.A. 382-A (New Hampshire’s codification of the UCC). The text reflects the post-2022 UCC Article 2 amendments as adopted in New Hampshire.