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 Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Commercial Law Commons 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 IMAC O AICE 2 O E U.C.C. O E OCIE O AICIAOY EUIAIO E. UE AYO, . * In AnlArn l, ntrt nrll vd pr r r f pr pprtd b ffnt ndrtn t rndr th pr r pr lll bltr. Whn ntrt nt prfrd rdn t t tr t d t hv bn brhd, nd th l rr th brhn prt t nr n d. In rtn, prr ndr ntrt nt t th pr h ntnt nt t prfr h bltn t th t t ll b lld fr b th ntrt. Sh ntn trd "ntptr rpdtn" f th ntrt. Whn n ntptr r pdtn r, th tn rd hthr th pr h n dt l fr brh f th ntrt. Artl 2 f th Unfr Crl Cd ntn nbr f prvn dnd t pr vd rd n ntptr rpdtn ttn. It th prp f th rtl ( t xn th ntdnt t th Cd rl, (2 t lt nbr f prbl hh xtd ndr prCd l, nd ( t th pt f th Cd n h ttn. I. ACKGOU—AICIAOY EUIAIO A COMMO AW At n l, fndn f tl brh prr t th t t fr prfrn nt lll pbl, fr t nl t tht t tht th blr n b d t hv lll bltd hlf t d r nt t d prtlr t r t f t. h, f A ntrt n nr t ppl d t n th flln br , nd f n Mrh , A lr t h ntnt nt t prfr n br , thr ld b n tn fr brh f ntrt. rdl f h xpr n f rpdtn, A ld nt b ndrd n brh ntl br , th t t hh h t dlvr th d. Sn A dd nt xprl pr t lt h frd f tn prr t th n trt dt fr prfrn nd h rpdtn d nt prld h dlvr f th d, ld hv t t tl nnprfrn n br bfr h ld h rd fr brh. In 8, n th f hllptt v. Evn, rn r lrl nd phtll rjtd th ntn tht n ntptr rpdtn ht nttt prntl tnbl brh f ntrt: []r ll tht [dfndnt] tplt fr , tht h ll b rd nd lln t rv th d, nd p fr th, t , ln Unvrt, 6 Mbr, nn r Atnt rfr, Un vrt f Gr Shl f . All rfrn t th Unfr Crl Cd ll b t th 62 Offl xt. 2 En. p. 200 (Ex. 8. 917 OSO COEGE IUSIA A COMMECIA AW EIEW 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 AICIAOY EUIAIO p b dnt, t h tn trn rt n Enlh nd Arn l. Svrl bjtn hv, hvr, bn dvnd nt th dtrn. h frt nptl—thr nnt b brh ntl th prd prfrn nt frthn. h nd tht prprfrn d xp th rpdtr t n nbrndf r r nd x tnd t th nnrpdtn prt n nbrndfr ndfll. nll, t d tht th dtrn ndll plt th frltn f d? h nptl dfflt n b vr b rnzn tht n f th prr f th l f ntrt prttn f th prt rnbl xpttn, n f hh tht th ntptn f pr frn hn d ll nt b thrtnd. ntrt ntll vlntr rrnnt, nd b ttnt b n prt tht h ll nt prfr t b tn t f vl, t lr tht n n ttn btntl thrt f nnprfrn n b rnzd bn th vrtl vlnt f ltt nnprfrn f th ntrt. h nd bjtn tht th dtrn xp th dfndnt t nbrndfr r. It n l b d, hvr, tht th flr t plnt th dtrn ld bjt th plntff t d fr hh h dd nt brn nd ht nrnbl dl h btnn f rpn. Atll, th dtrn bd n n pld tr n th ntrt—tht nthr prt ll frtrt th thr brndfr xpttn. It pl d tht th prt ld hv rd hd th thht f t, nd pp th ld lfll brn th rht t fr n ntptr brh. h fnl bjtn tht th dtrn plt th frltn f d fr brh f ntrt. It hld, hvr, b ntd tht hl th dtrn d plt th t f rn d fr brh, t d nt th t r pltd thn t n vrl thr ntn hr th l ll rvr fr lll rnzd rn. r xpl, th rvr f ftr prft lt fr th ntrrptn f n bn nn f brh f ntrt n b rvrd n n tn fr brh, f th ntrrptn frbl nn f brh t th t f ntr nt th ntrt. 8 h l l ll rvr f lt ftr rnn n n tn t rvr d fr dbln trt.° h nt f h l , f r, lttl r thn lllltd . th th ntn, hvr, r dtnhbl fr th ntptr rpd tn , fr, n th lttr, th prbl n b vdd pl b 7 S 4 A. Crbn, Cntrt 6, t 864 (. 8 S, .., xb v GCIY Cr C., 88 W. 8, 206 .W. (2. 9 S, .., Gbrltr Cl Mnn C. v. Mllr, 2 K. 2, 2 S.W.2d 8 (0. S nrll C. MCr, 86 (. 919 OSO COEGE IUSIA A COMMECIA AW EIEW requiring that the aggrieved party await the performance date speci- fied in the contract before bringing his action for breach. In light of this, the desirability of the doctrine can be reduced to a simple value judgment: Is the loss of expectation of performance an injury against which the law should offer protection even though to do so creates problems in the precise and accurate ascertainment of damages? The value judgment has apparently been made. The courts have taken the position that the importance of protecting the expectation interest outweighs the magnitude of the problem of lack of certainty in the measurement of damages created by recognition of the doctrine of anticipatory repudiation." II. "EIIEESS" A "SUSAIAIY" O EUIAIO An anticipatory breach of contract occurs when a "definite and unequivocal" repudiation of intent to perform a "substantial" part of the contract at the due date is made, either expressly or impliedly, prior to the time for performance and is communicated, either directly or indirectly, to the party on the other side of the contract." The application of this rule has resulted in two major problems: (1) that of determining whether a repudiation is "definite and unequivocal," and (2) that of deciding whether the repudiation is sufficiently "sub- stantial" to amount to a breach.