Anticipatory Repudiation

Anticipatory repudiation: This principle, known as the doctrine of anticipatory repudiation, provides that when there has been a repudiation of the contract by one party before the time for his performance has arrived, the other party may treat the entire contract as breached and commence suit without delay. 22A N.Y. JUR.2D Contracts § 444 (1996). Resort to this doctrine is at the election of the non-breaching party. See Sven Salen AB v. Jacq. Pierot, Jr., & Sons, Inc., 559 F.Supp. 503, 506 (S.D.N.Y.1983), aff’d, 738 F.2d 419 (2d Cir.1984). However, “there must be a definite and final communication of the intention to forego performance before the anticipated breach may be the subject of legal action. Mere expression of difficulty in tendering the required performance, for example, is not tantamount to a renunciation of the contract.” Rachmani Corp. v. 9 East 96th Street Apartment Corp., 211 A.D.2d 262, 629 N.Y.S.2d 382, 385 (1st Dep’t 1995) (citations omitted). The doctrine of anticipatory breach thus obviates the need for the non-breaching party to postpone suit until the time for performance of the other party has expired.

by Richard A. Klass, Esq.

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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
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