VocabuLaw

Anticipatory Breach

What is it and what does it mean?

Description of the legal term Anticipatory Breach:

Anticipatory Breach, in English law, refers to a situation in a contract where one party clearly indicates, either by words or actions, that it will not perform its obligations under the contract. This indication must be unequivocal and is often made before the actual time of performance. The concept is crucial in contract law as it allows the non-breaching party to take immediate action rather than waiting for the time of performance to confirm the breach.

In English law, an anticipatory breach can take two main forms: an express repudiation, where one party explicitly states that it will not perform the contract, and an implied repudiation, where the other party’s actions make it clear that it will be unable to perform its obligations under the contract. Once an anticipatory breach has been established, the non-breaching party has the option of either treating the contract as immediately breached and seeking remedies such as damages, or waiting to see if the breaching party will actually perform when the time comes.

Legal context in which the term Anticipatory Breach may be used:

Example 1: Express repudiation
Consider a scenario in which Company A enters into a contract with Company B, whereby Company B agrees to deliver specialised machinery to Company A by a certain date. Two months before the delivery date, Company B contacts Company A and states that it will not deliver the machinery as agreed. This communication from Company B is an express repudiation of the contract. Upon receiving this information, Company A can immediately treat the contract as being in breach and seek remedies, such as claiming damages or terminating the contract. It does not need to wait until the actual delivery date to take action.

Example 2: Implied repudiation
Consider a contract between a freelance graphic designer, Jane, and a client, XYZ Corporation, for a large design project. The contract specifies a six-month time frame for completion. Four months into the project, Jane has not delivered any designs or responded to XYZ Corp.’s inquiries. In addition, XYZ Corp. learns that Jane has taken on several other large projects at the same time, making it highly unlikely that she will complete the project on time. Jane’s lack of communication and over-commitment to other projects can be interpreted as an implied rejection. XYZ Corp could reasonably conclude that Jane will not fulfil her contractual obligations and may choose to terminate the contract and seek damages for anticipatory breach.

In both examples, the key element is a clear indication by one party that it will not perform its obligations under the contract. Anticipatory breach allows the non-breaching party to take immediate action and provides a proactive tool for managing the risks and uncertainties inherent in contractual relationships.

This website is for informational purposes only and may contain inaccuracies. It should not be used as a substitute for professional legal advice.