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15 Cards in this Set

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Anticipatory Repudiation:

What is it?
- special excuse doctrine, what if prior to due performance you have a good feeling that the other party is not going to perform.
- You can not have a cause of action for a breach of contract if the time has arised and passed and the other party still hasn’t preformed, but this has not stoped the law from provding a rememdy. Where before the time is due that that there is a good reason to believe that the other party will not perform. There are two doctrines: (1) anticipatory repudiation (2) prospective inability to perform (pip) remedy if prior to the time of performance you feel that they are not going to performe.
- Either doctrine will give you a right to demand assurances. Either an AR or a Pip. (2-609, 2-651)
- What is the difference? AR (I won’t perform) = It is a positive statement if reasonably interpretated to the effect a party will not perform or its clear it is impossible for the person to perform. PIP (I might not perform)- you have an indication that the party might not perform.
- The the effect? If you have an AR- you have an excuse from the condition of being ready willing and able to perform. With one exception the party may files suit immediately eventho the time for performance has not occurred. Pip- you are excused from being ready willing and able to perform, but you have to wait until the time of performance is due to sue. If you don’t know what one you have and you demand assurances and they are not forthcoming in the appropriate time that is anticipatory repudiation. Which you have effectively turned the PIP into and AR and you can sue immediatly
o Can you withdraw a repudiation? Yes unless the person has relied it
o Can you ignore? Yes, but you need to mitigate your damages.
o Locus poenitentiae – (a time or place for repentance)
o Ar exception (Greguien) if all you have left is the payment of money you can not sue right away for your money you must wait for the time of performance.
o What about insolvency- normally thought to be a pip and not an AR.
Anticipatory Repudiation:

If you cover before the date of delivery. When can you ask for the money under recovery?
It is an Ar and they have the option to pay it right away. They went out and covered. Can it recover from ventures in 2016 yes. They would get 24 billion.
What established AR?

Hochster v. De La Tour
Legal Issue(s): Whether Df may, before the day of the agreed upon hiring of Pl as a courier, renounce the agreement, entitling Pl to recover damages where Pl was ready, and willing to perform the service until it was renounced by Df?
Court’s Holding: Yes
Procedure:
Law or Rule(s): Where there is a K to do an act on a future date, there is a relation between the parties, that they impliedly promise that in the meantime neither will do any thing to the prejudice of the other inconsistent with that relation.
- this court tailors a remedy that was not really necessary they should have waited
- this court established anticipatory repudiation.
- If you have an AR you are excuse from being ready willing an able to perform you can sue immediatly
Pip:

Example that says i might not preform what can you do that would satisfy
Problem 160 on page 750.

What would be satisfactory comment for someone that says i might not preform.

"Our local bank is willing to issue you a letter of credit for the damages payable in the event we default"
AR of Pip:

2-609
When reasonable ground for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agree return
After a receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of a particular case is a repudiation of the contract.
AR:

Hopes Architectual Products
Legal Issue(s): Whether Pl's delay in delivering windows and Pl's excessive demands entitled Df to treat Pl as in breach of contract, and whether the Pl was entitled to demand assurances?Court’s Holding: Yes, and No.
- If you think someone is not going to supply your windows ? You cover cancel and go get your contract
- Three principles with regard to demanding assurances-
o If you have a possible repudiation that has no effect unless you act on it, it is merely a waiver.
o Is hope entitled to demand assurances? A party already in breach is not entitled to 2-609
o Adequate assurances if you demand more than adequate assurances you would be in breach of contract
 Hope breached twice, 1) Demanded High Assurances 2) Didn’t deliver on time.
How does insolvancy affect Anticipatory repudiation?
Incolvency gives the ee reasonable gounds to believe that the or will commit a breach under the rool similar to 2-609. The ee may suspend any performance for which he has not already received the agreed exchange until he receives assurance in the form of performance itself, an offer of performance, or adequate securyt.
A person is insolvent who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due or is insolvent within the meaning of the federal bankruptcy law.
Insolvancy:

What if you learn that a company you are working with becomes insolvent and has defaulted on a similar job. Can this be treated as a repudiation?
- He can suspend any performance for which he has not already received the agreed exchange until he receives assurance in the form of performance itself, an offer of performance, or adequate security
- This is Pip. Perhaps the debt exceeded the assets.
Insolvancy:

What if they were able to perform the contract but it was dont in a way that way not reasonable and unexpected
-It was unforeseen that they would rent snowmobiles to get to the concert
What are the exceptions to AR:
Whether plaintiff-insured was entitled to award for future disability, under doctrine of anticipatory breach, on ground that insurers had, after period of time, refused to make further payments under policies claiming that loss was due to illness without confinement?
Court’s Holding: No
Procedure: Trial ct entered judgment for Pl; Remanded with directions to modify.
Law or Rule(s): In unilateral Ks for the payment in installments after default of one or more, no repudiation can amount to an anticipatory breach of the rest of the installments not yet due.
Court Rationale: The doctrine of anticipatory breach has not ordinarily been extended to unilateral Ks. The verdict amounts to a determination that the Pl is entitled to the monthly payments so long as he is totally and permanently disabled. Dfs are not relieved of the obligation of making the payments UNLESS the Pl should recover or die. Should the Dfs fail in the future to make payment w/o just cause or excuse, the Pl can file another action, and the ct can fashion such relief as will compel performance. The judgment as it pertains to future benefits should be modified.
- The case represent the acception to the AR. You must wait until the time of performance is due. Why do we have this exception?
- Damages of life expectancy where damages of a person’s life can’t be measured. This is wiliston’s argument.
AR:

Hopes Architectual Products
Legal Issue(s): Whether Pl's delay in delivering windows and Pl's excessive demands entitled Df to treat Pl as in breach of contract, and whether the Pl was entitled to demand assurances?Court’s Holding: Yes, and No.
- If you think someone is not going to supply your windows ? You cover cancel and go get your contract
- Three principles with regard to demanding assurances-
o If you have a possible repudiation that has no effect unless you act on it, it is merely a waiver.
o Is hope entitled to demand assurances? A party already in breach is not entitled to 2-609
o Adequate assurances if you demand more than adequate assurances you would be in breach of contract
 Hope breached twice, 1) Demanded High Assurances 2) Didn’t deliver on time.
How does insolvancy affect Anticipatory repudiation?
Incolvency gives the ee reasonable gounds to believe that the or will commit a breach under the rool similar to 2-609. The ee may suspend any performance for which he has not already received the agreed exchange until he receives assurance in the form of performance itself, an offer of performance, or adequate securyt.
A person is insolvent who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due or is insolvent within the meaning of the federal bankruptcy law.
Insolvancy:

What if you learn that a company you are working with becomes insolvent and has defaulted on a similar job. Can this be treated as a repudiation?
- He can suspend any performance for which he has not already received the agreed exchange until he receives assurance in the form of performance itself, an offer of performance, or adequate security
- This is Pip. Perhaps the debt exceeded the assets.
Insolvancy:

What if they were able to perform the contract but it was dont in a way that way not reasonable and unexpected
-It was unforeseen that they would rent snowmobiles to get to the concert
What are the exceptions to AR:
Whether plaintiff-insured was entitled to award for future disability, under doctrine of anticipatory breach, on ground that insurers had, after period of time, refused to make further payments under policies claiming that loss was due to illness without confinement?
Court’s Holding: No
Procedure: Trial ct entered judgment for Pl; Remanded with directions to modify.
Law or Rule(s): In unilateral Ks for the payment in installments after default of one or more, no repudiation can amount to an anticipatory breach of the rest of the installments not yet due.
Court Rationale: The doctrine of anticipatory breach has not ordinarily been extended to unilateral Ks. The verdict amounts to a determination that the Pl is entitled to the monthly payments so long as he is totally and permanently disabled. Dfs are not relieved of the obligation of making the payments UNLESS the Pl should recover or die. Should the Dfs fail in the future to make payment w/o just cause or excuse, the Pl can file another action, and the ct can fashion such relief as will compel performance. The judgment as it pertains to future benefits should be modified.
- The case represent the acception to the AR. You must wait until the time of performance is due. Why do we have this exception?
- Damages of life expectancy where damages of a person’s life can’t be measured. This is wiliston’s argument.