Boston College Law Review Volume 9 Article 3 Issue 4 Number 4
7-1-1968 The mpI act of Article 2 of the U.C.C. on the Doctrine of Anticipatory Repudiation E Hunter Taylor Jr
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Recommended Citation E H. Taylor Jr, The Impact of Article 2 of the U.C.C. on the Doctrine of Anticipatory Repudiation, 9 B.C.L. Rev. 917 (1968), http://lawdigitalcommons.bc.edu/bclr/vol9/iss4/3
This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. E IM AC O A IC E 2 O E U.C.C. O E OC I E O A ICI A O Y E U IA IO E. U E AY O , . In An l A r n l , ntr t n r ll v d pr r r f pr pp rt d b ff nt n d r t n t r nd r th pr r pr l ll bl t r . Wh n ntr t n t p rf r d rd n t t t r t d t h v b n br h d, nd th l r r th br h n p rt t n r n d . In r t n , pr r nd r ntr t n t t th pr h nt nt n t t p rf r h bl t n t th t t ll b ll d f r b th ntr t. S h n t n t r d " nt p t r r p d t n" f th ntr t. Wh n n nt p t r r p d t n r , th t n r d h th r th pr h n d t l f r br h f th ntr t. Art l 2 f th Un f r C r l C d nt n n b r f pr v n d n d t pr v d r d n nt p t r r p d t n t t n . It th p rp f th rt l ( t x n th nt d nt t th C d r l , (2 t l t n b r f pr bl h h x t d nd r pr C d l , nd ( t th p t f th C d n h t t n .
I. ACKG OU —A ICI A O Y E U IA IO A COMMO AW At n l , f nd n f t l br h pr r t th t t f r p rf r n n t l ll p bl , f r t nl t th t t th t th bl r n b d t h v l ll bl t d h lf t d r n t t d p rt l r t r t f t . h , f A ntr t n n r t ppl d t n th f ll n b r , nd f n M r h , A l r t h nt nt n t t p rf r n b r , th r ld b n t n f r br h f ntr t. rdl f h xpr n f r p d t n, A ld n t b n d r d n br h nt l b r , th t t h h h t d l v r th d . S n A d d n t xpr l pr t l t h fr d f t n pr r t th n tr t d t f r p rf r n nd h r p d t n d n t pr l d h d l v r f th d , ld h v t t t l n np rf r n n b r b f r h ld h r d f r br h. In 8 , n th f h llp tt v. Ev n , r n r l rl nd ph t ll r j t d th n t n th t n nt p t r r p d t n ht n t t t pr ntl t n bl br h f ntr t: [ ] r ll th t [d f nd nt] t p l t f r , th t h ll b r d nd ll n t r v th d , nd p f r th , t , l n Un v r t , 6 M b r, nn r A t nt r f r, Un v r t f G r S h l f . All r f r n t th Un f r C r l C d ll b t th 62 Off l xt. 2 En . p. 200 (Ex. 8 . OS O CO EGE I US IA A COMME CIA AW E IEW
the time when by the contract he ought to do so. His contract was not broken by his previous declaration that he would not accept them; it was a mere nullity, and it was perfectly in his power to accept them nevertheless; and, vice versa, the plaintiffs could not sue him bef ore.3 This mechanistic view of a contract, requiring both an expiration of the contract time and a failure to perform before an action for breach, was later relaxed somewhat. In the 1853 landmark case of Hochster v. De la Tour,' plaintiff, a courier, contracted to accompany defendant to Europe from June 1 to September 1 for a fixed fee. On May 11, defendant emphatically repudiated. On May 22, plaintiff brought an action for breach and subsequently acquired work begin- ning on July 4. The defendant argued that his preperformance repudi- ation was in legal effect an offer to rescind the repudiated contract, an offer which presented to the nonrepudiating party two alternatives: acceptance or rejection. Rejection would necessitate that the non- repudiating party continue ready, willing and able to perform until the date specified in the contract for performance in order to put the repudiating party in default. Any other course of conduct, it was argued, would amount to an acceptance of the offer to rescind and would free the repudiator from legal liability on the contract.' Lord Chief Justice Campbell refused to accept this argument. But it is surely much more rational, and more for the benefit of both parties, that, after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it. Thus, instead of remaining idle and laying out money in preparations which would be useless, he is at liberty to seek service under another employer, which would go in mitigation of the damages to which he would otherwise be entitled for a breach of the contract.° Logically, this argument leads only to the conclusion that the plaintiff ought to be excused from performance. The court nevertheless, without considering the alternatives, allowed plaintiff to recover damages al- though he had brought his action prior to the time for defendant's performance. Although the doctrine that an anticipatory repudiation may amount to a presently actionable breach seems thus to have sprung
Id. t 202. 4 8 En . p. 22 (Q. . 8 . Id. t 2$. 0 Id. t 26. 8 A ICI A O Y E U IA IO