- This occurs if one party notifies the other party of intention to breach the contract.
- For example, Hochester v De La Tour 1853 (http://www.youtube.com/watch?v=He9w62ePgHY&list=UU-rlFDi-6V6kAc6ILyX8ggg&index=1). In this case the defendant employed the plaintiff to work starting in a month. Before he started work the defendant terminated the contract, the plaintiff argued there had been a breach. The courts agreed there had been a breach and the plaintiff could claim damages immediately.
- The remedy that an anticipatory breach fruits is dependent on on what type of term we are discussing; so the breach of a condition will yield the repudiation of the contract and the breach of a warranty or an innominate term will tend to yield damages.
- With anticipatory breach the key feature is that the are communicated to the other party either expressly or impliedly.
- By communicating the innocent party has a chance to seek performance elsewhere and could reduce the liability of the party in breach. It is beneficial for both parties.
- Express communication tend to be easier to deal with. Where it is implied it is more complex. The remedies tend to be more fact sensitive.
Thursday, 28 March 2013
What is anticipatory breach?
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