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4.2-25 Defense - Anticipatory Breach (Repudiation)

New June 1, 2012

The defendant claims that the plaintiff committed an anticipatory breach of the contract.  An anticipatory breach of contract occurs when one party to a contract indicates that (he/she/it) will not perform (his/her/its) obligations under the contract before the time for performance has arrived.  This indication can occur either by a statement that the party will not perform or by an act that indicates an unwillingness to perform.

If you find that the plaintiff did anticipatorily breach the contract by <describe>, then the defendant had no obligation to perform (his/her/its) duties under the contract.

However, this is only a valid defense to the plaintiff’s claim if you find that the defendant, as of the time of the plaintiff’s repudiation, had fulfilled his duties under the contract.

Authority and Notes

Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn. App. 460, 465, cert. denied, 223 Conn. 926 (1992).  The so-called nonbreaching party’s ability to recover for anticipatory breach is limited by his ability to perform under the contract.  “ln order to establish that the defendants anticipatorily breached the contract, the plaintiff must be able to show that it would have been able to perform its obligations on the date set for performance.”  Land Group, Inc. v. Palmieri, 123 Conn. App. 84, 93 (2010).  The Restatement (Second) of Contracts § 254 (1) states that “[a] party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise.”  2 Restatement (Second), Contracts § 254, p. 290 (1981).

“Repudiation can occur either by a statement that the promisor will not perform or by a voluntary, affirmative act that indicates inability, or apparent inability, substantially to perform.”  Gilman v. Pedersen, 182 Conn. 582, 584 (1981).


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