Reproduced with permission of 69 University of Cincinnati Law Review (Winter 2001) 565-639

     [Introduction]

1. Development of the Common Law Doctrine
   A. Hochster v. De la Tour and the Origins of Anticipatory Repudiation
   B. Other Early English Cases: Danube & Black Sea Railway, Frost, Johnstone, and Synge
   C. The Doctrine's Early Development in the United States
   D. Increasing Acceptance Following Roehm
2. "Canonization" of the Doctrine: Anticipatory Repudiation in the First Restatement of Contracts
3. Codification of the Doctrine: Anticipatory Repudiation Under the Uniform Commercial Code
4. Standardization of the Doctrine: Anticipatory Repudiation Under the Restatement (Second) of Contracts
5. "Internationalization" of the Doctrine: Anticipatory Repudiation of Contracts Governed by the U.N. Convention on Contracts for the International Sale of Goods
6. Conclusion

[INTRODUCTION]

Contract law is the law of enforceable promises.[1] A promise is the promisor's expression of how or to what end he intends to act (or to refrain from acting), made so as to justify and induce reliance by the promisee.[2] A promise is enforceable if, inter alia, the promisor's breach affords the promisee a legal remedy.[3]

In the typical case, a promisor breaches a contract by failing to perform when and as promised. Until the time has come for him to perform, and until all conditions precedent to his performance are satisfied, he cannot breach the contract by failing to perform as promised.[4] If, for example, X and Y agree that Y will travel to Europe on X's behalf next November and that X will pay Y $5,000 at the time [page 565] of Y's departure plus expenses, X is not obligated to perform until next November, and thus cannot breach his promise until then.[5]

Or, can he?

X's promise creates immediate duties, irrespective of the length of time between when X makes his promise and when he is obligated to perform.[6] X is required both to perform as promised next November and to refrain from repudiating his promise to Y at any time prior to next November.[7] If X definitely and unconditionally repudiates his promise, and communicates his repudiation to Y, then, even though X's breach occurs before he was obligated to perform and before one or more conditions specified in his promise have ever occurred, X's repudiation constitutes an anticipatory breach of the contract, and entitles Y to immediately sue X for breach -- despite the fact that Y had no right to expect X to perform until some future date.[8] [page 566]

A promisor may repudiate either by word or by deed. If a promisor tells his promisee that he either will not or cannot perform the contract at the time called for or in the manner called for, the promisor's statement may operate as an anticipatory breach,[9]9 unless the promisor's statement is justified.[10] Likewise, the promisor may anticipatorily breach if he commits some voluntary act that makes it impossible for him to perform the contract when and as promised.[11] And, to the extent that the promisor can exercise such dominion over the promisee, the promisor may anticipatorily breach by committing a voluntary act that makes it impossible for the promisee to perform her contractual [page 567] obligations.[12] With one notable exception,[13] a promisor cannot anticipatorily repudiate by mere silence or inaction.[14]

A promisee whose promisor has repudiated his obligation may elect to (1) cancel the contract, (2) treat the anticipatory repudiation as a breach by bringing suit against the promisor or otherwise act in reliance on the repudiation, or (3) do nothing, subject to the promisee's obligation to mitigate damages,[15] and await the promisor's performance at the appointed time.[16] The promisor's repudiation relieves the promisee from any further tender or performance that would otherwise be due under the contract.[17]

In order to recover damages for the promisor's repudiation, the promisee may be required to show that, but for the promisor's repudiation, she was ready, willing, and able to tender or perform at the appointed time.[18] If the promisee elects to ignore the promisor's repudiation,[19] or if the promisee does not act on it one way or another before the promisor retracts or otherwise cures his repudiation,[20] the [page 568] promisee may not prevail on a claim for damages based on the promisor's anticipatory breach.

Whether a promisor repudiates by word, act, silence, or inaction, his anticipatory repudiation will only be actionable if he communicates it to the promisee,[21] in definite and unequivocal terms,[22] and the promisee acts upon it,[23] prior to the time that the promisor's performance is due under the contract. Otherwise, the promisor's repudiation is an actual -- not anticipatory -- breach of contract, and must be prosecuted, defended, and adjudged accordingly.[24]

Not all contracts are susceptible to actionable anticipatory breaches. The doctrine does not generally apply to unilateral contracts,[25] including [page 569] unilateral contracts to pay money.[26] Likewise, once one party to a [page 570] bilateral contract has fully performed its obligations -- and, thus, effectively converted the contract into a unilateral one -- any repudiation by the party who has yet to perform will generally not support a claim of anticipatory breach.[27]

At common law, a promisee who establishes a promisor's anticipatory breach may recover damages attributable to the promisor's repudiation,[28] subject to the promisee's duty to mitigate.[29] In certain cases, a promisee may elect restitutionary relief [30] or specific performance [31] in lieu of compensatory damages. The relevant provisions of the Uniform Commercial Code [32] and the United Nations Convention on Contracts for the International Sale of Goods [33] provide their own set of remedies for a promisee whose promisor anticipatorily repudiates a contract governed thereby.[34] [page 571]

I. DEVELOPMENT OF THE COMMON LAW DOCTRINE

Anticipatory repudiation is not a new idea. As early as 1855, a prominent American commentator advised that, "[i]f a party, bound to do a thing on a certain day, and therefore having the whole intermediate time, by some act distinctly incapacitates himself from doing that thing on that day, ... an action may be commenced at once."[35] Only twenty years later, the New York Court of Appeals declared that it was "well settled ... that if a person enters into a contract for service, to commence at a future day, and before that day arrives does an act inconsistent with continuance of the contract, an action may be immediately brought by the other party."[36] By the time the Supreme Court decided Central Trust Co. of Illinois v. Chicago Auditorium Association [37] some forty years later, the Court declared that it was "no longer open to question" that [page 572] where a party bound by an executory contract repudiates his obligations or disables himself from performing them before the time for performance, the promisee has the option to treat the contract as ended, so far as further performance is concerned, and maintain an action at once for the damages occasioned by such anticipatory breach.[38]

But, from whence came the doctrine?

A. Hochster v. De la Tour and the Origins of Anticipatory Repudiation

The landmark case holding that a party may bring an action for damages immediately upon the other party's anticipatory breach is Hochster v. De la Tour.[39] By contract dated April 12, 1852, De la Tour agreed to employ Hochster as a courier for a three-month period, commencing June 1, 1852, for 10 per month.[40] On May 11, 1852, De la Tour wrote Hochster that he had changed his mind, that he would not employ Hochster as first promised, and that he would not otherwise employ or compensate Hochster.[41] Hochster subsequently secured other employment on comparable terms, but not until July 4, 1852.[42]

Hochster sued on May 22, 1852 -- ten days before De la Tour was obligated to perform -- arguing that De la Tour's repudiation of his promise to employ Hochster was a breach of contract, notwithstanding that De la Tour had breached prior to the time he was due to perform.[43] De la Tour answered that there could be no breach before June 1.[44]

The jury found for Hochster, and De la Tour sought a nonsuit or to arrest the judgment.[45] Lord Chief Justice Campbell, posed the question before the court this way:

Whether, if there be an agreement between A. and B., whereby B. engages to employ A. on and from a future day for a given period of time, to travel with him into a foreign country as a courier, and to [page 573] start with him in that capacity on that day, A. being to receive a monthly salary during the continuance of such service, B. may, before the day, refuse to perform the agreement and break and renounce it, so as to entitle A. before the day to commence an action against B. to recover damages for breach of the agreement; A. having been ready and willing to perform it, till it was broken and renounced by B.[46]

De la Tour argued that, if Hochster was unwilling to agree to dissolve the contract upon De la Tour's repudiation, then Hochster was obligated to stand ready and willing to perform at all times prior to the date he was to perform the contract, to the exclusion of accepting other employment; and, therefore, Hochster could not suffer any injury from De la Tour's repudiation, and could not bring suit thereon, until De la Tour's performance was due.[47] The court disagreed:

If the plaintiff has no remedy for breach of the contract unless he treats the contract as in force, and acts upon it down to the 1st [of] June 1852, it follows that, till then, he must enter into no employment which will interfere with his promise "to start with the defendant on such travels on the day and year," and that he must then be properly equipped in all respects as a courier for a three months' tour on the continent of Europe. But it is surely much more rational, and more for the benefit of both parties, that, after 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 must 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.[48]

As for Hochster's right to an immediate remedy, [t]he man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued ... by the man whom he has injured: and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer.[49] [page 574]

Hochster was not the first reported Anglo-American case to hold that a promisee has an immediate right of action upon a promisor's anticipatory repudiation. Dean Hunter and Professor Jackson each bestow that honor upon the New York Supreme Court of Judicature's decision in Masterton & Smith v. Mayor of Brooklyn.[50] In Masterton & Smith, the plaintiffs (M & S) agreed in January 1836 to procure, cut, fit, and deliver "with all diligence" marble to be used for the City Hall being built by the defendants (the City of Brooklyn and certain city officials, collectively "the City").[51] In March 1836, M & S contracted to purchase marble from the quarry of Kain & Morgan (K & M).[52] The terms of this second contract provided that M & S would pay K & M from the funds M & S were to receive from the City, and that K & M would "in no event" expect payment from M & S until M & S received payment from the City.[53] Several months into the building project, in July 1837, the City halted construction and refused to accept any more marble from M & S, who were ready and able to deliver more.[54] The evidence before the trial court suggested that M & S's contract with the City could not be fully performed until at least 1842.[55] M & S commenced suit in 1840,[56] and prevailed at trial.

On appeal, Chief Judge Nelson held that M & S were entitled to recover, as of the day of the City's repudiation, any profits lost as a result of the City's refusal to fully perform.[57] Judge Beardsley agreed that M & S were entitled to recover their unrealized profits,[58] and extended the logic of Chief Judge Nelson's argument that M & S's cause of action arose on the day the City anticipatorily breached, holding that M & S were not bound to wait till the period had elapsed for the complete performance of the agreement, nor to make successive offers of performance, in order to recover all their damages. They might regard the contract as broken up, so far as to absolve them from making further efforts to perform and give them a right to recover full damages as for a total breach. I am not prepared to say that the plaintiffs might not have brought successive suits on this covenant, [page 575] had they from time to time made repeated offers to perform on their part, which were refused by the defendants: but this the plaintiffs were not bound to do.[59]

Further digging unearths several earlier cases -- including Jones v. Barkley,[60] which pre-dates Masterton & Smith by sixty-four years. The plaintiffs in Jones (who were assignees of Gardiner, a bankrupt) were entitled to the equity of redemption of 1490 worth of bank stock held by Gardiner and mortgaged to Lane to secure a loan by Lane to Gardiner.[62] Barkley and the plaintiffs agreed that the plaintiffs would assign and release their claims in favor of Lane (or anyone he should designate), for which Barkley would pay the plaintiffs 611 "on the plaintiffs assigning the equity of redemption ... to Lane, or any person he should appoint, and executing and delivering such general release."[62] The plaintiffs tendered a draft assignment and release to Barkley for his approval, who refused to pay the plaintiffs the 611 as promised and "absolutely discharged" the plaintiffs from executing any assignment and release.[63] The plaintiffs sued. At trial, Barkley argued that the plaintiffs failed to perform their end of the bargain because they did not, in fact, execute an assignment and release in Lane's favor; and, therefore, that Barkley was not obligated to pay the plaintiffs.[64] The court found that, while a party seeking to recover for breach of contract must show that he is ready to perform when required, if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther, and do a nugatory act. Here, the draft was shewn to the defendant for his [approval] ... but he would not read it, and, upon a different ground, namely, that he mean[t] not to pay the money, discharge[d] the plaintiffs from executing it.[65] [page 576]

In Bowdell v. Parsons,[66] Bowdell agreed to purchase twelve loads of hay from Parsons, to be removed from Parsons's property at Bowdell's convenience, for which Bowdell was to pay Parsons 5 10s. per load. Bowdell received the first load from Parsons, and paid Parsons at the agreed rate. Thereafter, Parsons refused Bowdell's request to remove any of the remaining eleven loads of hay; and, in fact, sold them to third parties without Bowdell's consent.[67] Bowdell sued Parsons for breach, and won a default judgment. The bulk of the court's opinion focused on a procedural matter relating to venue, and the court ultimately concluded that Bowdell's default judgment should not be arrested because of the alleged procedural irregularity.[68] In reaching that conclusion, Lord Ellenbrough first observed that Bowdell was entitled to judgment on the merits because Parsons's "selling and disposing of the rest of the hay to other persons ... disqualified him[] from delivering it to" Bowdell; and, therefore, Bowdell need not have made further requests that Parsons perform as promised before bringing suit.[69]

In Newcomb v. Brackett,[70] Field owed Brackett $100, which Brackett had secured by a deed against Field's estate. Newcomb and Brackett agreed that Brackett would convey Field's estate to Newcomb in exchange for $100 to discharge Field's debt to Brackett plus a one-half interest in the sloop Union and its apparel (valued at $200).[71] Before Newcomb could pay Brackett the $100, but after Newcomb had conveyed to Brackett a bill of sale for the sloop and its apparel, Brackett conveyed the deed to a third party.[72] Newcomb sued Brackett for breach, and Brackett defended on the ground that Newcomb had not paid him the $100; and, therefore, was not entitled to the deed.[73] The Massachusetts Supreme Judicial Court held for Newcomb:

No time is fixed in the contract, within which the money was to be paid, or the estate conveyed to the plaintiff. The plaintiff then had a reasonable time, by virtue of the contract, to perform his part of it .... [page 577]

It is implied in the contract, on the part of the defendant, that he would do nothing by which he should become unable to perform it; and by making a deed to another person, he has disabled himself, and so virtually broken his contract. It being impossible for him, after having thus done, to account for the 200 dollars in the land, as he undertook, there is a breach of his contract, for which proper damages may be recovered. The law will not, in such circumstances, require a payment or tender by the plaintiff; for this would be to hazard an additional loss, without any possible advantage.[74]

In Ford v. Tiley,[75] the parties entered into a contract on January 3, 1824, whereby Tiley agreed to lease a building to Ford beginning December 21, 1825 and running for 14 or 21 years, at Ford's option, with rent at 105 per annum.[76] On June 24, 1825, Tiley agreed to lease the same building to a third party (Sims), for 23 years, commencing September 29, 1825.[77] Upon learning of Tiley's June 1825 lease of the subject property to Sims, Ford brought suit. At the time Tiley entered into both contracts, the building in question was under a pre-existing lease to Sims until "midsummer 1827."[78] Tiley used this fact to argue that Ford's suit was premature, and that it could not be brought until the pre-existing lease expired or was abandoned by the lessee. The court disagreed:

[T]hough we are satisfied that [the original] lease is, as between the parties, to be considered as subsisting, and that the defendant cannot hitherto have been taken to have been possessed, and has never had a right to have the possession, we are of the opinion that the action is maintainable; because, by the lease of June 1825, the defendant has given up his right to have the possession, and has put it out of his power, so long as the lease of June 1825 subsists, to grant the lease that he stipulated to grant [to Ford]. It is very true, the defendant may obtain a surrender of the lease before midsummer 1827, and then he will be in a condition to grant the lease he stipulated to grant; but ... obtaining such a surrender is not to be expected, and ... where a party has disabled himself from making an estate he has stipulated to make at a future day, by making an inconsistent conveyance of that estate, he is considered as guilty of a breach of his stipulation, and is liable to be sued before such day arrives.[79] [page 578]

The plaintiff in Planch v. Colburn [80] agreed to write a volume on "Costume and Ancient Armour" to be published as a part of the defendants' serial, The Juvenile Library. The defendants agreed to pay Planch 100 when Planch submitted a completed manuscript.[81] While Planch was still at work on the manuscript, the defendants abandoned The Juvenile Library, owing to poor sales of the earlier volumes in the set, and notified Planch that they would not publish his volume nor pay him for his efforts.[82] Planch , who at the time of the defendants' repudiation had completed a substantial part of the manuscript and had incurred expenses associated with preparing the work, sued for breach.[83] The jury found for Planch , and awarded him 50 as damages. The Court of Common Pleas affirmed, holding that the defendants' action in canceling The Juvenile Library entitled Planch to sue for and recover the reasonable value of his services despite having not completed his manuscript, and thereby obligated the defendants to pay him, at the time of the cancellation.[84]

In Williams v. Champion,[85] Williams purchased 666 acres of land in January 1818 from Champion, who agreed to accept the purchase price of $3,562.00 in four installments: three equal payments of $725.77 due [page 579] on October 1, 1818, October 1, 1819, and October 1, 1820, and a fourth payment of $1,384.77 due on demand. Prior to August 5, 1820, Williams had paid Champion $500, and had sold all but 257 acres of the original tract to third parties.[86] While the facts are unclear, Champion appears to have received some, but not all, of the sale price from the sales by Williams to the third parties.

On August 5, 1820, Williams and Champion entered into a new contract whereby Champion agreed (1) to convey 82 acres of the remaining 257 acres to Williams's son, (2) to accept the third party sales contracts Williams had already entered into, (3) to designate Williams as his agent to sell the remaining 175 acres, and (4) upon Williams's successful sale of 100 of the remaining acres at a price of not less than $10 per acres, to convey to Williams the remaining 75 acres as compensation for his sale of the entire 666 acre tract, less the acres set aside for Williams and Williams's son.[87] Despite Williams's diligence, he was unable for several years to sell the 100 acres required of him by the August 5, 1820 contract. In May 1825, Champion conveyed to Goodrich the 100 unsold acres, plus the 75 acres promised to Williams.[88] Williams subsequently sued Champion and Goodrich for the 75 acres promised to him, or for their value in money. The Ohio Supreme Court held that Williams was entitled to recover from Champion because "Champion, by conveying to Goodrich, put an end to the contract, and disabled Williams from performing that portion of it that remained unperformed."[89]

In both Short v. Stone [90] and Caines v. Smith [91] the issue was whether a man who had promised to marry a particular woman (the promisee) on, or within a reasonable time following, request by the promisee and then, while the promise was still outstanding, married another woman, was in present breach of the promise to marry the promisee.[92] In both cases, the man argued that the promisee did not ask him to marry her prior to filing suit.[93] Both courts found her request to be unnecessary, given that the man had disabled himself from fulfilling his promise even had she [page 580] made the request.[94] The court in Caines also rejected the argument that the defendant's present wife might die before the plaintiff, enabling him to fulfill his promise to marry her at some later date.[95]

The most immediate antecedent to Hochster was Cort & Gee v. Ambergate, Nottingham & Boston & Eastern Junction Railway,[96] in which one issue for the court was whether a purchaser who had entered into an installment contract for the manufacture and delivery of railroad chairs made to its specifications could be liable to the manufacturer for damages incurred when the purchaser notified the manufacturer several months before the final installment was due under the contract,[97] and after having received and accepted a portion of the chairs,[98] not to tender any more chairs as the purchaser had no need for any more and would neither accept nor pay for any that the manufacturer subsequently delivered. The purchaser defended against the manufacturer's action for breach by arguing that the manufacturer had not proven that it was ready, willing, and able to supply the remaining chairs because the manufacturer never actually tendered them to the purchaser following the purchaser's notice.[99] The trial court found for the manufacturer.[100] On rule nisi, the Court of Queen's Bench held that the manufacturer was entitled to recover, despite failing to tender, because the tender was made moot by the purchaser's declaration.[101] [page 581]

Even though it was not the first reported Anglo-American decision to find an anticipatory breach immediately actionable, Hochster is nonetheless generally considered, for better or for worse, to be the source from which the doctrine sprung.[102] [page 582] [page 583]

B. Other Early English Cases: Danube & Black Sea Railway, Frost, Johnstone, and Synge

Four other early English cases deserve comment: Danube & Black Sea Railway & Kustendjie Harbour Co. v. Xenos,[103] Frost v. Knight,[104] Johnstone v. Milling,[105] and Synge v. Synge.[106]

The plaintiffs in Danube & Black Sea Railway engaged the defendant's company to load on August 1, 1860, and thereafter deliver, certain rolling stock, plant, and materials from London to Kustendjie, Turkey on the defendant's ship, the Mavrocordatos.[107] On July 20th or 21st, the defendant (Xenos) sent a letter to the plaintiffs (Danube) denying the existence of the contract and informing Danube that Xenos had no intention of performing.[108] On July 23rd, Danube replied, informing Xenos that they considered the contract to be binding, that were ready to perform their part of it, and that, if Xenos failed to perform his part, they would hold him responsible for any ensuing damages.[109] Xenos again denied the existence of the contract, but proffered a new contract [page 584] (on terms less favorable to Danube), which Danube refused to sign.[110] Faced with Xenos's twice-stated refusal to perform the original contract, Danube, prior to August 1st, made other arrangements to have their goods loaded and shipped to Kustendjie.[111] On August 1st, Xenos notified Danube that he was ready to receive and ship their goods. Danube then informed Xenos that they had made other arrangements and that they would look to Xenos "for re-imbursement of the heavy loss which is likely to result" from having to make substitute arrangements on short notice.[112]

Danube sued Xenos to recover the additional expenses they incurred. Xenos answered by (1) denying the existence of the original contract, (2) denying Danube's readiness and willingness to perform according to the terms of the original contract, (3) denying that he breached the original contract, and (4) arguing that Danube had discharged any obligations Xenos had under the original contract by making substitute arrangements, informing Xenos that they would not need his services, and refusing to deliver the goods for loading on the appointed date.[113] Xenos also counterclaimed, arguing that Danube's refusal to make their goods available for loading on the appointed date caused Xenos to "los[e] the hire and freight he would have earned had the said cargo been shipped."[114] Danube answered the counterclaim by arguing, inter alia, that Xenos had repudiated the contract, entitling Danube to treat it as breached, discharging Danube from further performance, and permitting Danube to sue Xenos for any damages resulting from his repudiation.[115]

The Court of Common Pleas found for Danube on two grounds: first, that Xenos had repudiated the contract giving Danube the right to treat his repudiation as a present breach and bring suit; [116] and, second, that any attempt by Xenos to retract his repudiation by notifying Danube on August 1st that his ship stood ready to receive Danube's goods, if indeed Xenos had such a right, was cut off by Danube making [page 585] other arrangements in reliance on Xenos's repudiation.[117] On appeal, the Exchequer Chamber affirmed the Court of Common Pleas per curiam.[118]

In Frost, the defendant promised to marry the plaintiff on the death of the defendant's father. However, before the defendant's father died, the defendant announced his intention not to marry the plaintiff as promised and broke off their engagement. The plaintiff brought suit shortly thereafter, and before the death of the defendant's father.[119] The jury found for the plaintiff, but the trial court entered judgment for the defendant on the ground that the defendant could not breach his contract until his father died; and, therefore, the plaintiff's claim was premature.[120]

On appeal, the Exchequer Chamber reversed on the authority of Hochster v. De la Tour, [121] which the court referred to as "settled law"[122] that was "obviously quite as applicable to a contract in which personal status or personal rights are involved, as to one relating to commercial or pecuniary interests."[123] A promisee whose promisor announces, prior [page 586] to the time his performance is due, that he will not perform as promised, may if [s]he pleases, ... treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance: but in that case [s]he keeps the contract alive for the benefit of the other party as well as h[er] own; [s]he remains subject to all h[er] own obligations and liabilities under it, and enables the other party not only to complete the contract, ... notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.

On the other hand, the promisee may ... treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring h[er] action as on a breach of it .... [124]

The plaintiff in Frost elected the second option. She was justified in doing so, the Frost court reasoned, because permitting the promisee to act immediately on the promisor's repudiation, and take timely measures to arrange for substitute performance may enable the [page 587] promisee to "in many cases avert, or at all events materially lessen, the injurious effects which would otherwise flow from the non-fulfillment of the contract,"[125] thereby reducing both the inconvenience to the promisee and the damages owed by the promisor.

In Johnstone v. Milling,[126] the plaintiff leased certain realty to the defendant for a term of twenty-one years. The lease contained a covenant obligating the plaintiff, at any time after the fourth year, and upon six months written notice from the defendant, to rebuild the premises at his own expense in the manner and within the time period provided for in the covenant.[127] During the defendant's tenancy, he frequently spoke with the plaintiff about rebuilding. The plaintiff repeatedly told the defendant that he did not have the money needed to comply with the covenant, but that he hoped to secure a second mortgage loan on the property to raise the funds.[128] The first four years of the lease having run, the defendant served the plaintiff with the required notice to trigger the covenant, and the plaintiff, again, told the defendant that he was "utterly unable" to get the money.[129] The defendant continued to occupy the leased premises for some period of time thereafter, but eventually surrendered the lease. The plaintiff then sued for unpaid rent, and the defendant counterclaimed that the plaintiff had anticipatorily breached the covenant to rebuild and, therefore, the defendant was relieved of its obligations under the lease.[130] The county court found for the plaintiff, but the Queen's Bench Division entered judgment for the defendant on the defendant's counterclaim. The plaintiff appealed.

Lord Esher framed the dispute before the Court of Appeal as follows:

It is alleged that a breach of the contract was committed by the plaintiff before the end of the four years, inasmuch as he had declared that he was unable and would be unable to find the money for rebuilding when the time came. It is insisted that such declaration amounted to a declaration of his intention not to perform the contract, and was intended as a repudiation of it, or that, if it was not so intended, the expressions used by the plaintiff were such that the defendant was entitled to treat them as equivalent to a repudiation of [page 588] the contract; and it is accordingly contended that there was a breach of the contract by anticipation before the time for its performance arrived, for which the defendant was entitled to damages, and that the fact that the defendant afterwards exercised his option of determining the lease is immaterial, for in so doing the defendant only acted for the benefit of the landlord in order to minimize the damages arising from his repudiation of the contract.[131]

After reviewing the relevant authorities [132] -- most notably, Hochster v. De la Tour [133] -- the court considered three issues: first, whether the plaintiff's declaration that he was unable to find a lender to finance the rebuilding of certain leased premises was sufficient to constitute an anticipatory repudiation of his covenant to rebuild; second, whether the repudiation, if any, of a single obligation embodied in a larger contract was sufficient to constitute an anticipatory repudiation of the entire contract; and, third, whether, in fact, the defendant treated the contract as repudiated or, instead, attempted to both hold the plaintiff to the contract and sue the plaintiff for its breach.[134] The Court of Appeal found for the plaintiff on all three issues, concluding that the plaintiff's declarations of inability to find the money for rebuilding the leased premises did not mean that "whatever happened, whether he came into the money or not, his intention was not to rebuild the premises"; [135] that, [page 589] because an actual breach of the covenant would not entitle the defendant to avoid the entire lease, an anticipatory breach of the covenant, if any, would likewise not entitle the defendant to avoid the entire lease; [136] and, in any event, that the defendant did not accept the plaintiff's purported repudiation by immediately quitting the leased premises, rather the defendant stayed on for several months, and should not be permitted to have benefited from the lease while simultaneously arguing that it no longer existed.[137] [page 590]

Finally, in Synge v. Synge,[138] a husband conveyed to his daughters his whole estate and interest in certain property that he had agreed, in consideration of his wife's promise to marry him, to leave to his wife in his will. The issue for the Court of Appeal was whether the husband, by conveying the property to others during his life, had anticipatorily repudiated his promise to leave the same upon his death to his wife, thus entitling the wife to treat the promise as broken and sue, prior to her husband's death, for damages.[139] The Court of Appeal reversed the trial court's judgment for the husband, holding that the defendant's conveyance to his daughters "put it absolutely out of his power to perform this contract"; [140] and, therefore, his wife "had a right to treat that conveyance as an absolute breach of contract, and to sue at once for damages."[141]

C. The Doctrine's Early Development in the United States

In the United States, the doctrine of anticipatory breach met with somewhat mixed results in the Nineteenth Century. Courts in Arkansas,[142] California,[143] Illinois,[144] Indiana,[145] Iowa,[146] Michigan,[147] [page 591] Minnesota,[148] Missouri,[149] New York,[150] Ohio, [151] Pennsylvania,[152] Texas,[153] Vermont,[154] Virginia,[155] and West Virginia [156] recognized and applied the doctrine before the end of the Nineteenth Century.[157] Courts in Maine,[158] Massachusetts,[159] Nebraska,[160] and North Dakota [161] rejected the doctrine.[162] [page 592] [page 593]

Two significant early United States Supreme Court decisions seem to have insured that the doctrine would be widely adopted in this country. In Dingley v. Oler,[163] the plaintiffs and defendants were in the business of cutting and transporting bulk ice. The plaintiffs, "finding themselves in possession of a large quantity of ice undisposed of, and which threatened to be a total loss, pressed the defendants to buy some or all of it."[164] The defendants responded to the plaintiffs' entreaties by letter dated September 6, 1879, offering to take the plaintiffs' excess ice and "return the same to you next year from our houses."[165] At the time the defendants took the plaintiffs' ice, it was worth fifty cents ($0.50) per ton.[166] In July 1880, a representative of the plaintiffs inquired when the defendants intended to ship the replacement ice. On July 7, 1880, the defendants wrote that, in light of the fact the prevailing market price was five dollars ($5.00) per ton, "we must, therefore, decline to ship the ice for you this season, and claim as our right to pay you for the ice in cash at the price you offered other parties here (that is, fifty cents [$0.50]), or give you ice when the market reaches that point."[167] Following a second demand by the plaintiffs, the defendants again wrote, on July 15, 1880: "We cannot, therefore, comply with your request to deliver you the ice claimed, and respectfully submit that you ought not to ask this of us ...."[168] The plaintiffs brought suit on July 21, 1880.

The trial court found that, while the shipping season was far from over in July 1880, the defendants' letters of July 7 and July 15, 1880 constituted an unequivocal refusal to deliver any ice to the plaintiffs [page 594] during the season; and, therefore, the plaintiffs' claim was properly brought before the end of the season.[169] The trial court awarded the plaintiffs damages based on the lowest market price between July 1880 and the end of that year's ice shipping season: two dollars ($2.00) per ton.[170] The defendants appealed on the ground that, because their statements to the plaintiffs did not constitute an unequivocal refusal to deliver any ice during the season, the plaintiffs' claim was premature.[171]

The Supreme Court reversed, holding that the defendants' July 7th and 15th letters did not unequivocally manifest their intent not to perform the agreement; and, therefore, the plaintiffs' action was prematurely brought:

In the letter of July 7th, the defendants .... accompan[y their refusal to ship immediately] with the expression of alternative intention, and that is, to ship it, as must be understood, during that season, if and when the market price should reach the point which, in their opinion, the plaintiffs ought to be willing to accept as its fair price between them. It was not intended, we think, as a final and absolute declaration that the contract must be regarded as altogether off, so far as their performance was concerned, and it was not so treated by the plaintiffs. For, in their answer of July 10th, they repeat their demand for delivery immediately, speak of the letter of the 7th instant as asking "for a postponement of the delivery," urge them "to fill our order," and close with "hoping you (the defendants) will take a more favorable view upon further reflection," c]. Here, certainly, was ... a request for further consideration, based upon a renewed demand, instead of abiding by and standing upon the previous one.

Accordingly, on July 15th, the defendants replied to the demand for an immediate delivery to meet the exigency of the plaintiffs' sale of the same ice to others, and the letter is evidently and expressly confined to an answer to the particular demand for a delivery at that time. [The defendants' July 15th letter], we think, is very far from being a positive, unconditional, and unequivocal declaration of fixed purpose not to perform the contract in any event or at any time. In view of the consequences sought to be deduced and claimed as a matter of law to follow, the defendants have a right to claim that their expressions, sought to be converted into a renunciation of the contract, shall not be enlarged by construction beyond their strict meaning.[172] [page 595]

In Roehm v. Horst,[173] decided, poetically, at the dawn of the Twentieth Century, the Court went the extra step that it had felt was unnecessary in Dingley, clearly endorsing the doctrine and holding that an action for damages could be properly brought by a promisee before the date the promisor's performance was due if the promisor unequivocally manifested its intention not to be bound. The plaintiffs, individually and in the name of their firm, Horst Brothers, entered into a series of contracts to sell hops to the defendant over a five-year period. During the term of the contract, Horst Brothers was dissolved, and the plaintiffs notified the defendant of that fact. The defendant replied that he considered the firm's dissolution to put an end to their contract, and the defendant refused to receive and pay for subsequent shipments from the plaintiffs. The plaintiffs sued the defendant, and prevailed in the trial court. The Supreme Court affirmed.

Describing the issue for the Court and summarizing the relevant authorities, Chief Justice Fuller wrote:

The doctrine which thus obtains in England has been almost universally accepted by the courts of this country, although the precise point has not been ruled by this court.[174] [page 596]

Having painstakingly reviewed numerous prior decisions,[175] the Court held:

Nineteenth-Century American commentators generally appear to have taken the doctrine at face value, reporting -- and, in some cases, misreporting [177] -- the foundational cases without much real advocacy or criticism.[178] That said, Parsons did suggest that it might "seem more reasonable" to permit the promisee to sue immediately upon the promisor's anticipatory repudiation "only where the capacity of the promisor could not be restored before the day, or the promisee had received a present injury from the act of the promisor."[179] Bishop counseled that the doctrine "cannot properly be carried so far as to work a palpable injustice" such as promoting economic waste or unjust enrichment.[180] And Knowlton described the rationale of the Massachusetts Supreme Judicial Court, rejecting the doctrine in Daniels v. Newton,[181] as "able" and offering "strong reasons why the English cases should not be followed,"[182] before concluding that contrary authorities [page 598] made available an immediate right of action "depend[ing] on the nature of the contract."[183]

The most organized and insightful analysis of the state of the doctrine during this period was probably that of Horace Henderson, who traced the doctrine from before Hochster v. De la Tour, [184] up through Dingley v. Oler,[185] and identified key aspects of the doctrine deriving from various cases.[186] He then offered a somewhat less expansive assessment of early state court decisions, noting the split in authority between the majority of states to have considered the doctrine to date and Massachusetts, and then assaying a middle ground wherein the courts of New York "ha[d] been vacillating ... , unwilling to take the position of Massachusetts and deny in toto the validity of the rule," but also not yet "ready to follow the other States in a full approval and acceptance if it."[187]

D. Increasing Acceptance Following Roehm

Over the three decades following the Supreme Court's decision in Roehm v. Horst, the number of American jurisdictions that accepted the doctrine of anticipatory repudiation and the right of a wronged promisee to sue immediately upon the promisor's unequivocal repudiation, even when the time for performance under the contract was not at hand, more than doubled,[188] to include two of the four jurisdictions that had originally opposed the doctrine -- Maine [189] and North Dakota [190] -- as well as Alabama,[191] Arizona,[192] Colorado,[193] Connecticut,[194] the District [page 599] of Columbia,[195] Florida,[196] Georgia,[197] Kansas,[198] Kentucky, [199] Maryland,[200] Mississippi,[201] Nebraska,[202] New Jersey,[203] North Carolina, [204] Oklahoma,[205] Oregon,[206] Rhode Island,[207] South Carolina,[208] Tennessee,[209] Washington,[210] and Wisconsin.[211] [page 600]

At the same time that the number of jurisdictions embracing the doctrine was doubling, so were the efforts of those who criticized the doctrine. While Nineteenth-Century American commentators confined themselves primarily to reporting the evolution of the doctrine, rather than either singing its praises or pointing out its deficiencies,[212] the gloves soon came off.

In a multi-part article appearing close on the heels of the Supreme Court's decision in Roehm v. Horst,[213] Paul Moses criticized the doctrine in general,[214] the Supreme Court's holding and reasoning in Roehm, specifically,[215] and the American judicial system,[216] for having ever opened the door to the doctrine. Reminiscent of a latter-day Martin Luther, nailing his complaints to the door of the Wittenberg [page 601] Cathedral,[217] Moses concluded with twelve "points" of criticism [218] and this parting shot:

[H]owever much "a diversity in the law as administered on the two sides of the Atlantic concerning the interpretation of contracts of this kind is greatly to be deprecated," it is nevertheless to be regretted that the highest tribunal in the land, by its carefully considered and deliberate judgment, has sanctioned this anomalous doctrine, and by the weight of its authority and example, fortified it, so that it bids fair to become the American doctrine as well.[219]

It is not clear what audience or what impact, if any, Moses's criticisms had at or near the time of their publication. A thorough review of case reports available on-line, as well as a careful reading of the numerous articles and other secondary sources cited in this work, reveal no mention of Moses's criticisms.

The other outspoken early Twentieth-Century critic of the doctrine was none other than Samuel Williston, Dane Professor of Law at Harvard Law School, who published some preliminary thoughts about the doctrine in a two-part article appearing in the Harvard Law Review,[220] which then formed the basis for the corresponding sections in what would eventually become the leading American contracts treatise of the day.[221] [page 602]

Williston's criticism of the doctrine focused most finely on the same issue that underlay Moses's attack: while a promisor's anticipatory repudiation might excuse the promisee from further performance, it should not empower the promisee to immediately declare the contract at an end and sue the promisor for failing to render a performance not yet due.[222] Williston also argued against giving the promisee the right to elect whether to "accept" the promisor's anticipatory repudiation and put the contract to an end or to "reject" the repudiation and keep the contract in force until the time when the promisor's performance is due and she either performs as promised or commits an actual breach.[223]

Williston criticized the English rule -- generally not followed by the American courts of his day -- permitting a promisee to increase its [page 603] damages by electing not to treat a repudiation as a breach,[224] the English rule -- on which American courts of his day were most circumspect -- that treated a promisee's expression of willingness to continue, or request that the promisor continue, the contract despite the promisor's repudiation as an election to keep the contract alive and to waive the right to "accept" the promisor's anticipatory breach,[225] and the English and American rules that unilateral contracts not be subject to anticipatory breach.[226]

Williston concluded that the great weight of American authority, whether rightly or wrongly, accepts the doctrine of anticipatory breach but with some differences from the English law. If the doctrine is to be accepted at all, the modifications which American decisions suggest should certainly be incorporated into it. The rights of a party to a bilateral contract of mutually dependent promises upon an anticipatory repudiation by the other party will then be: (1) To rescind the contract altogether, and if any performance has already been rendered by the injured party, to recover its value on principles of quasi-contract; (2) to elect to treat the repudiation as a breach, either by bringing suit promptly, or by making some change of position, or (3) to await the time for performance of the contract and bring suit after that time has arrived. Even if the plaintiff thus elects to wait until the stated time for performance, he will be excused from the necessity of performing or being ready to perform on his own part unless the repudiating party withdraws his repudiation before a change of position by the injured party makes this performance more burdensome. Indeed, the injured party has no right to perform, if, by so doing, damages will be enhanced.[227]

We need not wonder, as we did with Moses, whether Williston had an audience or whether his criticisms were afforded due consideration.[228] Even if his views, like those of Moses, did not win the [page 604] day outside Massachusetts,[229] Williston's criticisms of the doctrine of anticipatory repudiation have been both widely read and influential.[230]

The doctrine was not without its contemporary supporters, chief among whom were the University of Nebraska's Lauriz Vold and the University of Minnesota's Henry Winthrop Ballentine. In response to the argument advanced by critics of the doctrine that an immediate cause of action is "illogical," because there can be no breach prior to the time for performance,[231] Vold wrote that the doctrine's critics overlooked the inherent value to the promisee (and, presumably, the promisor) of the promise to perform, itself, as distinct from the promised performance.[232]

Vold defended the right to sue immediately upon the promisor's anticipatory repudiation as vital to protect the promisee's advantageous [page 605] business relations.[233] Vold's argument started with the premise that existing contracts are an essential part of the "going concern" value and creditworthiness of a business.[234] Indeed, proceeds of contracts yet to be performed may well secure some or all of the credit extended to a going business concern.[235] Once we accept this premise, Vold argued, it is a small and obvious step to see the promisor's prospective repudiation as having an immediate effect on the value and creditworthiness of the promisee's business:

The business value -- the present advantage -- from established contractual relations is quickly and seriously impaired or destroyed by the promisor's anticipatory repudiation. A repudiated contract, no matter how binding in law, cannot effectively serve the promisee as the substantial foundation for business credit.... A repudiated contract, no matter how binding in law, ceases at once to be an effective business resource upon which the promisee can depend in arranging his own affairs. The repudiator at a stroke destroys the intangible asset quite as effectually as the incendiary with his torch destroys tangible property.[236]

Vold also argued that an immediate right to sue was essential to promote efficient allocation of resources by the promisee,[237] to avoid [page 606] financial repercussions for innocent third parties,[238] and to advance other important societal interests.[239]

Ballantine met all comers, including Williston [240] and the Massachusetts courts,[241] with a vigorous defense of the doctrine based both on legal principle [242] and equity.[243] As for Williston's argument that giving the promisee an immediate right to sue forecloses the possibility [page 607] that the promisor might "repent" and perform as called for,[244] Ballantine answered that the promisor's right to retract its renunciation might be preserved, while permitting the promisee an immediate right of action, if courts would allow[] a subsequent offer to perform to be shown in mitigation of damages, or by rendering a judgment in the alternative that the defendant perform ... or pay damages at the date set. But we can hardly be asked to deny the innocent man an immediate right of action and keep him waiting in suspense, in order that the sinner may speculate in repentance and perchance waste or conceal his assets against the evil day of suit.[245]

Ballantine concluded his defense of the doctrine by arguing that [t]o say that the law cannot logically give any remedy to enforce the contract against the repudiator until he actually carries out his injurious threat seems as pacifistic as to say that a country cannot take any measures to defend itself upon a mere declaration of war, but must wait until it is actually invaded and occupied by the enemy. There is no logical necessity that the law should indulge the repudiator in the power or privilege of breaking his contract or let him threaten with impunity.... [T]he doctrine of anticipatory breach is not only supported by its practical convenience, but by strong considerations of justice to the plaintiff ... [I]t does not enlarge the duties of the defendant or hold him liable on a promise he never made. It simply authorizes the commencement of proceedings to enforce those duties when the situation or misconduct of the defendant demands it.[246]

II. "CANONIZATION" OF THE DOCTRINE: ANTICIPATORY REPUDIATION IN THE FIRST RESTATEMENT OF CONTRACTS

Against this backdrop of widespread judicial acceptance of the doctrine and vigorous academic debate over its merits and contours, the American Law Institute published the first Restatement of Contracts in 1932.[247] The Restatement constituted the first serious attempt to [page 608] "standardize" American law on anticipatory repudiation. The Restatement included several provisions on anticipatory repudiation within a larger chapter on breach of contract.[248] Many of the first Restatement's anticipatory repudiation provisions continue to inform current statutory and common law.[249]

The Restatement provided that a promisor committed an anticipatory breach of a bilateral contract,[250] excusing the promisee from performing any condition precedent or any return promise,[251] and entitling the promisee to sue immediately,[252] if the promisor, without justification, and before the time her performance was due under the contract,[253]

The Restatement thus gave its imprimatur to the view held at the time by a majority of American courts [258] and several prominent commentators [259] -- but contrary to that of its Reporter and other commentators,[260] as well as a handful of courts [261] -- that an anticipatory repudiation entitled the aggrieved promisee to bring suit against the repudiating promisor even before the promisor's performance was technically due under the contract. It also adopted the view held by the United States Supreme Court and a number of lower courts,[262] but rejected by its Reporter and most other commentators,[263] that limited the foregoing [page 610] rule to contracts that remained mutually executory at the time of the repudiation.[264]

The Restatement empowered the promisee to sue, if at all, only before the promisor withdrew or retracted her repudiation, and before the promisee became aware that any facts constituting the repudiation no longer existed, unless the promisee materially changed his position in reliance on the promisor's repudiation.[265] Absent withdrawal or [page 611] retraction by the repudiating promisor, the promisee could bring suit on the repudiation at any time prior to the date performance was due, even if that date was many years distant, because limitations on the promisee's claim did not begin to run until the date performance was due, rather than the date of the repudiation.[266]

The Restatement's provisions on anticipatory repudiation did not specifically address the promisee's options in response to the promisor's repudiation -- that is, whether the promisee could choose between immediately bringing suit and waiting until a later date to do so in hopes that the repudiating promisor would, in fact, perform as promised. However, it did (1) treat a qualifying repudiation as a total breach [267] entitling -- but not compelling -- the promisee to sue for any remedy authorized for a total breach of contract; [268] (2) provide that limitations would not run against a promisee's action until the date the promisor's performance was due under the terms of the contract [269] -- strongly suggesting that, subject to her obligation to mitigate damages,[270] the promisee could, in fact, elect not to act on the promisor's repudiation in hopes that the promisor would ultimately perform; and (3) adopt the position, advanced by many commentators,[271] that allowed a promisee to request or even urge the repudiating promisor to perform without waiving the promisee's right to sue for anticipatory breach and to forego his own performance if the promisor failed to perform.[272] [page 612]

Two Supreme Court cases decided shortly after the Restatement's promulgation further ingrained and refined the doctrine of anticipatory repudiation as part of American contract jurisprudence. In Mobley v. New York Life Insurance Co.,[273] the plaintiff (Mobley), an insured of the defendant (NYL), suffered an acute attack of appendicitis on December 13, 1930, requiring emergency surgery from which he did not recover as expected.[274] At the time of the attack, Mobley had life insurance policies with NYL in the amounts of $5,000 and $2,000. Both policies included monthly benefits in the event he was disabled, and provided that, during any period of disability, NYL would waive all premiums otherwise due.[275]

After waiting out the exclusion period in his NYL policies, Mobley submitted the necessary forms, including the results of a physical examination, to claim his monthly benefits for permanent and total disability. NYL initially allowed his claim, waived his monthly premiums during the period of his disability (as provided for in the policies), and began paying the benefits. Several times over the next two years, NYL notified Mobley that it had concluded that he was no longer continuously and totally disabled and, therefore, it would pay him no further benefits and he would be required to resume paying premiums. In each instance, Mobley insisted that he continued to be disabled; and, after further investigation and consideration, NYL agreed, paid his past-due benefits, resumed his monthly benefits payments, and waived his premiums.[276]

On March 1, 1933, NYL again notified Mobley that it had determined that he was no longer totally disabled and that, therefore, NYL would no longer pay him any benefits and he would be required to resume making premium payments. This time NYL did not relent in the face of Mobley's protests. After Mobley failed to make the required premium payments on the $5,000 policy, NYL notified him on April 13, 1933 that the policy had lapsed and urged him to apply for its reinstatement. When Mobley did not do so, NYL wrote again to notify him that the value of the policy had been applied to continue the insurance in force until June 20, 1937. On June 9, 1933, NYL notified Mobley that the premium on the $2,000 policy was about to mature.[277]

On July 12, 1933, NYL notified Mobley that it was willing to further consider his claim for disability benefits. On July 24th, one of NYL's [page 613] own physicians examined Mobley. The physician's report, received by NYL on July 28th, stated that, since the time of the initial attack, Mobley "had been prevented by disability from engaging in any occupation [and] that he would be permanently prevented from strenuous occupation."[278] On August 9th, NYL notified Mobley that it would resume waiving his premiums, retroactive to February 1933, and tendered checks to cover all disability payments accruing on both policies up to and including July 1933. Mobley, having already filed suit, refused the checks. NYL continued to tender disability benefits each month thereafter.[279]

NYL prevailed against Mobley's claim for anticipatory breach both at the trial level and before the Fifth Circuit Court of Appeals.[280] The Supreme Court affirmed.

Repudiation by one party, to be sufficient in any case to entitle the other to treat the contract as absolutely and finally broken and to recover damages as upon total breach, must at least amount to an unqualified refusal, or declaration of inability, substantially to perform according to the terms of his obligation. Mere refusal, upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause, to pay a monthly benefit when due is sufficient to constitute a breach of that provision, but it does not amount to a renunciation or repudiation of the policy. There is nothing to show that any refusal of the company to pay the monthly disability benefits was not made in good faith. Its position appears at all times to have been that, if plaintiff was disabled as defined in the policy, he was entitled to the monthly benefits and waiver of premiums. The fact that, with additional information and upon further consideration, it gave greater weight to his claims and decided that he was continuously disabled as defined in the policies and so entitled to the specified payments goes to show adherence to, rather than repudiation of, the contracts. The company's efforts to have the policies kept in force were inconsistent with purpose to renounce them.[281]

New York Life Insurance Co. v. Viglas [282] also involved an alleged anticipatory repudiation of a life insurance policy with a provision for disability benefits and waiver of premiums during period of disability. In Viglas, the insured "lost 'the total and irrecoverable use' of one hand and one foot, and became totally and permanently disabled" in [page 614] September 1931.[283] Upon proof of his condition, NYL paid him monthly disability benefits until July 1933, and during the same period waived the insured's premium payments.[284] In August 1933, NYL notified the insured that it would pay no more benefits and no longer waive the insured's premiums because NYL believed that "for some time past the plaintiff had not been continuously totally disabled within the meaning of the disability benefit provision of the policy."[285] Unlike the insured in Mobley, the insured in Viglas apparently made no effort to get NYL to reconsider its determination that he was no longer disabled. When the insured did not make the necessary premium payment, NYL declared the policy lapsed [286] -- although it is unclear that NYL communicated this decision to its insured.[287] The insured sued, arguing that NYL had anticipatorily repudiated the policy.

As it had a year earlier in Mobley, the Supreme Court in Viglas found that NYL had not repudiated the policy:

III. CODIFICATION OF THE DOCTRINE: ANTICIPATORY REPUDIATION UNDER THE UNIFORM COMMERCIAL CODE

By the early 1960s, all but a handful of American jurisdictions had adopted the doctrine of anticipatory repudiation, with Delaware,[289] Louisiana,[290] Nebraska,[291] Nevada,[292] New Mexico,[293] and Utah [294] joining the ranks of those states that had already recognized the doctrine by the publication of the first Restatement.[295]

The next major step in the doctrine's development was its recognition by and inclusion in Article 2 of the Uniform Commercial Code,[296] [page 616] promulgated by the American Law Institute and the National Conference of Commissioners on Uniform State Laws.[297]

Section 2-610 provides that a promisee whose promisor repudiates [298] "with respect to a performance not yet due the loss of which will substantially impair the value of the contract to" the promisee [299] may [page 617]

Thus, like the promisee at common law whose promisor repudiates,[301] an aggrieved promisee of a contract governed by Article 2 may ignore the repudiation and await performance in due course by the repudiating promisor,[302] or she may treat the repudiation as a breach and seek any [page 618] remedy afforded by Article 2.[303] In either case, the promisee may suspend her own performance upon the promisor's repudiation.[304]

The Article 2 promisee has a fourth option not generally available at common law at the time Article 2 was promulgated.[305] Section 2-609(1) provides that [w]hen reasonable grounds 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 agreed return.[306] [page 619]

The promisee seeking assurances need only be reasonably uncertain that the promisor can perform, not absolutely certain that the promisor cannot perform.[307] Once a promisor receives a "justifiable" written demand for adequate assurances, he must "provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case."[308] A promisor failing to timely comply with a reasonable demand for adequate assurances has, by definition, committed an anticipatory breach on the basis of which the promisee can immediately bring suit.[309]

Section 2-609(1) begs several questions. First, how do we judge whether the promisee's grounds for insecurity are "reasonable" or "justifiable"? Second, what constitutes a "written demand" for adequate assurance? Third, how do we judge whether the assurance offered is "adequate"? Fourth, when is suspension of performance pending receipt of adequate assurance "commercially reasonable?"

Unless otherwise agreed by the parties,[310] between merchants the reasonableness of the promisee's insecurity and the adequacy of the promisor's offered assurances are determined "according to commercial standards,"[311] including the obligation of good faith; [312] in all other cases, [page 620] reasonableness and adequacy are judged by an objective, "reasonable person" standard.[313] Under either standard, it seems clear that a letter from the promisor to the promisee informing the promisee that the promisor's bank had shut off the promisor's operating funds and forced the promisor to lay off virtually all of its production personnel and cease operations would not constitute adequate assurance that the promisor would perform as called for by the contract.[314]

Unless otherwise agreed by the parties, a demand need not always be written -- in the sense of committing it to paper. E-mail may suffice.[315] Some courts have even allowed an oral demand for assurance to satisfy Section 2-609(1), as long as it is unequivocal.[316] Those doing so, however, are clearly in the minority.[317]

Nor need the written "demand" always be very demanding. In Smyers v. Quartz Works Corp.,[318] the seller wrote the buyer as follows: [page 621]

Reciting that Article 2 dictates that courts "construe the writing requirement liberally,"[320] the court found that the letter quoted above constituted a written demand for adequate assurances, entitling the sender to suspend its performance when the recipient did not give the requested assurances.[321] That said, most courts "require[] that the writing clearly specify that assurances are being sought."[322]

The reasonableness of the promisee's insecurity,[323] the adequacy of [page 622] the promisee's demand for assurances,[324] the adequacy of the promisor's offered assurances,[325] and the reasonableness of the promisee's suspension of performance awaiting assurance [326] are all questions of fact that, again subject to a contrary agreement of the parties,[327] "depend[] upon various factors, including the [promisor or promisee]'s exact words or actions, the course of dealing or performance between the parties, and the nature of the sales contract and the industry."[328]

Despite these questions, Article 2's right to demand adequate assurance of due performance was a major addition to the doctrine of anticipatory repudiation, affording an aggrieved promisee a "middle ground" option between doing nothing, in hopes that the promisor will ultimately perform, and immediately bringing suit and running the risk that a court might find that the promisor's words or deeds did not rise to the level of a "clear determination not to continue with performance,"[329] with all of the attendant consequences. [page 623]

As is true at common law,[330] a promisor who repudiates a contract governed by Article 2 may retract or withdraw its repudiation prior to the date its performance is due, as long as the promisee has not cancelled the contract, materially changed her position, brought suit upon the repudiation, or otherwise indicated that she considers the repudiation to be final.[331] A promisor who successfully retracts its prior repudiation reinstates its contractual rights and obligations, "with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation." [332] The promisor may retract its repudiation "by any method which clearly indicates to the aggrieved party that the repudiating party intends to perform."[333] A promisor's right to retract, [page 624] and the manner in which it must accomplish the retraction, is subject to the promisee's earlier demand for adequate assurance of performance.[334]

Sections 2-609, -610, and -611 (and their state-by-state counterparts) apply only to contracts for the sale of goods.[335] Nonetheless, a number of courts have applied the Code's anticipatory repudiation provisions -- and, in particular, Section 2-609 and the concept of adequate assurance of performance -- by analogy to contracts not involving the sale of goods.[336] Thus, the Code's anticipatory repudiation provisions have influenced non-Code common law. A primary example of that influence -- the incorporation of an adequate assurance of performance provision in the Restatement (Second) of Contracts -- will be discussed presently. The Code's anticipatory repudiation provisions have also influenced the evolving law of contracts for the international sale of goods, as will be discussed in Part V.

IV. STANDARDIZATION OF THE DOCTRINE: ANTICIPATORY REPUDIATION UNDER THE RESTATEMENT (SECOND) OF CONTRACTS

The provisions of the Restatement (Second) of Contracts dealing with anticipatory repudiation [337] are built upon the foundations laid by the first Restatement of Contracts [338] and by Article 2 of the Uniform Commercial Code,[339] as well as the vast body of case law supporting the doctrine that had developed in this country by 1980.[340] [page 625]

The Restatement (Second) provides that an obligor's [341] repudiation prior to the time his performance is due, and before he has received all of the agreed exchange for his performance, (1) discharges the obligee's remaining duties to perform,[342] and (2) entitles the non-repudiating obligee to immediately sue the repudiating obligor for breach.[343] Echoing Article 2's provision that the obligee may pursue any of her remedies for the obligor's repudiation despite "notif[ying] the repudiating party that [s]he would await the latter's performance and urg[ing] retraction,"[344] the Restatement (Second) provides: "The injured party does not change the effect of a repudiation by urging the repudiator to perform in spite of his repudiation or to retract his repudiation."[345]

An obligor repudiates his duty, in turn, by (1) making a statement to the obligee "indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach,"[346] (2) committing "a voluntary affirmative act which renders the obligor [page 626] unable or apparently unable to perform,"[347] or (3) failing to give adequate assurance of performance when properly asked to do so by the obligee.[348]

Echoing Section 2-609(1) of the Uniform Commercial Code,[349] the Restatement (Second) entitles an obligee who has "reasonable grounds ... to believe that the obligor will commit a breach by non-performance that would of itself give the oblige a claim for damages for total breach" to demand that the obligor give "adequate assurance of due performance" before the obligee is required to perform any act "for which he has not already received the agreed exchange."[350] For example, if the obligor's insolvency gives the obligee reasonable grounds to believe that the obligor will commit a breach under the rule stated in § 251, the obligee 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 security.[351]

The Restatement (Second) excuses a repudiating party from paying damages if, after his repudiation, it appears that (1) "there would have been a total failure by the injured party to perform his return promise,"[352] or (2) the duty that the obligor repudiated "would have been discharged by impracticability or frustration" before the time that [page 627] the obligor's performance would have been due,[353] or (3) the obligee ratified the contract following the obligor's repudiation.[354]

In Estate of Reaves v. Owen,[355] for example, Owen and Reaves, following the termination of their intimate relationship, entered into a settlement agreement whereby, inter alia, Reaves (and his heirs) would pay Owen $59,500 over the course of twelve months and Owen would return various items of personal property to Reaves. Despite Owen's failure to return all of the items, Reaves continued to make the scheduled monthly payments. Upon his death, Reaves's heirs attempted to avoid the obligation to continue paying Owen based on Owen's failure to return the personalty.[356] The court held that Reaves, fully aware of Owen's failure to fully perform his obligations, had nonetheless ratified the contract; and, therefore, Reaves's heirs were bound to make the remaining payments.[357]

The Restatement (Second) also generally excuses a repudiating party from paying damages if some condition precedent to his obligation to perform fails to occur prior to the date its performance is due,[358] unless the obligor's repudiation "contributes materially" to the non-occurrence of the condition.[359] In essence, the repudiating obligor cannot excuse his own repudiation by claiming the non-occurrence of a condition when his repudiation caused the non-occurrence.[360]

As is true under Article 2,[361] an obligor who repudiates a contract by any of the means identified above [362] may retract or nullify his repudiation prior to the date his performance is due, as long as the obligee receives notice of the retraction and has not materially changed [page 628] her position or otherwise indicated that she considers the repudiation to be final.[363] Additionally, if the repudiation was triggered by something other than a statement of the obligor, the repudiation will be nullified if, before the obligee materially changed her position or otherwise indicated that she considers the repudiation to be final, the obligee knows that the event or circumstance triggering the repudiation no longer exists.[364] The obligor may retract or nullify his repudiation by words or by conduct "adequate to convey the idea of retraction to the injured party."[365]

The Restatement (Second)'s most significant contribution to the doctrine of anticipatory repudiation may well be its extension of the right to demand adequate assurances to all contracts -- not merely those governedby the Uniform Commercial Code. It also serves a support function to the Code's anticipatory repudiation provisions. Given the close parallels between substance of the Code's provisions and the corresponding provisions in the Restatement (Second), to the extent that the Restatement (Second) comments on, explains, or fills gaps in those provisions, courts can turn to the Restatement (Second) to better understand and apply the Code.[366]

V. "INTERNATIONALIZATION" OF THE DOCTRINE: ANTICIPATORY REPUDIATION OF CONTRACTS GOVERNED BY THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

The most recent major step in the development of the doctrine of anticipatory repudiation has been in the area of contracts for the international sale of goods.

The United Nations Convention on Contracts for the International Sale of Goods (CISG) applies to contracts for the sale of goods between [page 629] parties whose places of business or habitual residences are in two (or more) different countries, each of which has acceded, accepted, approved, ratified, or succeeded to the CISG.[367] As of September 1, 2000, 57 countries, including the United States, had acceded, accepted, approved, ratified, or succeeded to the CISG.[368]

Because the CISG is a treaty of the United States, it is the law of every United States jurisdiction.[369] To the extent that the CISG [page 630] conflicts with the Uniform Commercial Code or state common law, the CISG controls.[370]

Articles 71 and 72 of the CISG collectively establish a three-tiered scheme for a promisee faced with a promisor's prospective repudiation.[371]

First, if it becomes apparent to the promisee [372] that the promisor will not perform a substantial part of his obligations, the promisee may suspend her own performance,[373] provided that the [page 631] promisee (1) immediately notifies the promisor after the fact that the promisee has suspended her performance,[374] and (2) promptly resumes performance if and when the promisor provides adequate assurances [375] that he will, in fact, substantially perform his contractual obligations.[376] [page 632]

Second, if it becomes clear to the promisee [377] that the promisor will fundamentally breach his obligations,[378] the promisee may avoid her own performance,[379] provided that the promisee, if time allows, notifies the promisor before the fact that the promisee intends to forego her [page 633] performance, "in order to permit [the promisor] to provide adequate assurance of his performance."[380]

Third, if it becomes clear to the promisee that the promisor will fundamentally breach his obligations because the promisor "has declared that he will not perform his obligations," the promisee may avoid her own performance without prior notice [381] -- and, hence, without the obligation to resume performance if and when the promisor provides adequate assurances.

Professor Flechtner advises that suspension under Article 71 requires less certainty concerning a future breach than does avoidance under Article 72. Article 72(1) permits avoidance only when "it is clear" that the other party will breach; under Article 71, the threatened breach need merely be "apparent" in order to justify suspension. It also appears that, compared to the requirements for avoidance under Article 72, the consequences of the threatened breach need not be as serious to trigger suspension under Article 71. The standard in Article 71 is non-performance of "a substantial part" of a party's obligations. Article 72 requires a threat of "a fundamental breach of contract." The distinction apparently drawn here between substantial non-performance and fundamental breach lends support to those who have argued that the definition of fundamental breach demands more than a "mere" material breach.

The distinction also creates an ambiguity in the operation of Article 71. Suppose that a party has suspended performance because the other side will apparently fail to perform a substantial but not "fundamental" part of its obligations. If adequate assurances are not forthcoming, can the aggrieved party continue to suspend its performance indefinitely? The answer should be no.... Permitting indefinite suspension where the threatened breach is not fundamental, therefore, would undermine Article 72, which permits avoidance only where it is clear that a fundamental breach will occur. Two solutions are possible: (1) Article 71 could be construed to require that the suspending party either avoid the contract or end its suspension within a reasonable time after demanding adequate assurances; (2) the standards for the seriousness of the threatened breach in Articles 71 and 72 could be treated as equivalent. Neither solution, however, is supported by the text of the Convention.[382]

Professor Honnold cautions that, unless the promisor has declared that he will not perform (the third alternative discussed above), the promisee's [page 634] attempt to avoid the contract in advance of the time for performance may overstep the limits set by Article 72. In this event, [the promisee] has a duty to accept due performance by [the promisor]. Moreover, [the promisee]'s wrongful declaration of avoidance may constitute a repudiation giving [the promisor] the right to avoid the contract under Article 72(1).[383]

Magellan International Corp. v. Salzgitter Handel GmbH [384] is the first reported American case applying the CISG's anticipatory repudiation provisions. Magellan, an American distributor of steel products, attempted to negotiate an agreement whereby Salzgitter, a German steel trader, would purchase steel bars from a Ukrainian steel producer, DSS, and resell them to Magellan. Prior to the date by which Salzgitter was to perform, Salzgitter demanded that Magellan amend a letter of credit Magellan had issued in Salzgitter's favor to permit Salzgitter to demand payment from the letter of credit without bills of lading or else Salzgitter would "no longer feel obligated" to perform and would sell the materials it had undertaken to purchase from DSS on Magellan's behalf "elsewhere."[385] Believing Salzgitter to be in breach, Magellan sought to cancel the letter of credit. Salzgitter returned the letter of credit, and attempted to sell the manufactured steel to Magellan's customers in the United States.[386]

Magellan sued Salzgitter for, inter alia, anticipatory repudiation of Salzgitter's contract to resell to Magellan the steel bars purchased from DSS. On Salzgitter's motion to dismiss, the trial court found that Magellan had stated a claim for anticipatory repudiation under Article 72(1) because the CISG only required Magellan to allege (1) that the defendant intended to breach the contract before the contract's performance date and (2) that such breach was fundamental. Here Magellan has pleaded that Salzgitter's March 29 letter indicated its pre-performance intention not to perform the contract, coupled with Magellan's allegation that the bill of lading requirement was an essential part of the parties' bargain. That being the case, Saltzgitter's [sic] insistence upon an amendment of that requirement would indeed be a fundamental breach.[387]

There are several significant differences between the CISG's approach to anticipatory repudiation and that of the Uniform [page 635] Commercial Code, the Restatement (Second), and American common law. Foremost, while the UCC,[388] Restatement (Second),[389] and American common law (outside of Massachusetts),[390] authorize a promisee whose promisor has repudiated to immediately bring an action for damages, the CISG only authorizes the promisee to suspend its own performance,[391] to stop goods in transit,[392] or, under more restrictive circumstances, to declare the contract "avoided."[393]

Second, the CISG circumscribes the sources of a promisee's insecurity, providing that it may only suspend its performance if the promisor's apparent inability to perform is caused by (1) a serious deficiency in the promisor's ability to perform, (2) a serious deficiency in the promisor's creditworthiness, or (3) the promisor's conduct in preparing to perform or in performing the contract.[394] By contrast, the UCC authorizes a promisee to suspend its own performance on the basis of "reasonable grounds for insecurity,"[395] and the Restatement (Second) authorizes suspension when "reasonable grounds arise to believe that the obligor will commit a breach by non-performance."[396] The key under both the Code and the Restatement (Second) is the probability that the promisor will not perform, not the inability of the promisor to perform.[397] [page 636]

Third, the CISG mandates that a promisee suspending performance under Article 71 give immediate notice of the suspension to the promisor.[398] Likewise, a promisee declaring a contract avoided under Article 72 must, time permitting, give reasonable notice to the promisor, [399] unless a prior declaration by the promisor makes it clear that such notice would be futile. [400] Neither the UCC, the Restatement (Second), nor American common law require the promisee to give notice prior to suspending its own performance or bringing suit on the repudiation.[401]

Fourth, if, after receiving the required notice, a promisor gives the promisee adequate assurance that the promisor will perform, then the CISG requires the promisee to continue with its performance (and give the promisor the opportunity to render its performance).[402] Neither the UCC, the Restatement (Second), nor American common law require a promisee whose promisor has repudiated to accept an unsolicited [page 637] assurance of performance; rather, an assurance of performance from the promisor will only obligate the promisee to further perform if the promisee asked for such assurance.

Finally, both the UCC [403] and the Restatement (Second) [404] treat a promisor's failure to timely provide adequate assurance as a repudiation entitling the promisee to immediately bring suit for damages. The CISG, on the other hand, does not spell out the promisee's options if the promisor refuses to provide adequate assurance.[405]

VI. CONCLUSION

From its modest beginnings, the doctrine of anticipatory repudiation has evolved into an integral part of American contract law. A party whose contracting partner's words or deeds make it sufficiently clear that she will not or cannot perform as and when expected need not await the actual breach to settle accounts. Instead, the party may immediately suspend his own performance and, except in cases governed by the U.N. Convention on Contracts for the International Sale of Goods or the common law of Massachusetts, immediately sue for damages. In the alternative, the party may immediately suspend his own performance and, even in cases governed by the U.N. Convention on Contracts for the International Sale of Goods or the common law of Massachusetts, demand that the contracting partner provide adequate assurances that she will perform as and when expected. If the contracting partner fails to provide adequate assurances within a reasonable [page 638] time, the party may then more confidently pursue his legal remedies. In any case, the nonbreaching party is excused from performing any conditions and from making necessary preparations to perform his contractual duties until the contracting partner (again) manifests her intent and ability to perform.

As this doctrine has evolved in the United States, each successive stage has contributed to its present contours. The doctrine as we now know it was "born" in the landmark 1853 case of Hochster v. De la Tour, but the processes of fertilization, gestation, and labor took more than seventy years. During the latter half of the Nineteenth Century, a number of American jurisdictions embraced the doctrine, a few rejected it, and academic commentators first recognized its existence. In the course of doing so, the courts -- both those who embraced the doctrine and those who rejected it -- and the commentators who brought it to the attention of the academy, bench, and bar influenced its development as a legal doctrine and its application to practical disputes.

The watershed period for the doctrine in this country was between 1900 -- when the United States Supreme Court first applied the doctrine to permit an aggrieved promisee to bring suit against a repudiating promisor prior to the date the promisor's performance was due -- and 1932 -- when the first Restatement of Contracts, authored by one of the doctrine's leading critics, included anticipatory repudiation in the first "canon" of American contract law. During this period, the number of American jurisdictions recognizing the doctrine more than doubled, and all but two jurisdictions that had previously rejected the doctrine embraced it.

The doctrine was subsequently codified in Article 2 of the Uniform Commercial Code, and later extended to all manner of contracts -- except, in most jurisdictions, unilateral contracts and those that had become unilateral by the time of the repudiation due to the nonbreaching party's full performance -- by its inclusion in the Restatement (Second) of Contracts. The contours sketched by Article 2 and the Restatement (Second) continue to define the doctrine today, except in cases involving contracts for the international sale of goods between a party in the United States and a party in another country that is a Contracting State to the CISG. While the anticipatory repudiation provisions of the CISG bear a strong resemblance to those in Article 2 and the Restatement (Second), there are important differences that those unfamiliar with the Convention may ignore at their own peril. [page 639]

FOOTNOTES

* Visiting Associate Professor of Law, Emory University School of Law; Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas (effective Fall 2001). B.A., Baylor University; M.P.P., Harvard University, John F. Kennedy School of Government; J.D., University of Texas School of Law. This Article derives from my work on Volume 9 of the Revised Edition of Corbin on Contracts, which will be published in late 2001 or early 2002. I would like to thank Andrew Kull, Scott Norberg, Joe Perillo, and Steve Ware for their comments, Tana Vollendorf, Donald Campbell, and Gayle Berne for their research assistance, the staffs at the Mississippi College School of Law Library and the Hugh F. MacMillan Law Library at Emory University School of Law for their assistance tracking down dozens of hoary cases and secondary sources, and Emory University School of Law and Mississippi College School of Law for providing summer research support. All errors and omissions, of course, are my own.

1. See Restatement (Second) of Contracts § 1 (1981) [hereinafter Restatement (Second)] ("A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty."); see, e.g., Schaefer v. Williams, 19 Cal. Rptr. 2d 212, 213-14 (Cal. Ct. App. 1993); Atwood v. Western Constr., Inc., 923 P.2d 479, 483 (Idaho Ct. App. 1996, review denied); Pyles v. Goller, 674 A.2d 35, 39 (Md. Ct. Spec. App. 1996); Rasnick v. Tubbs, 710 N.E.2d 750, 752 (Ohio Ct. App. 1998).

2. See Restatement (Second), supra note 1, § 2(1) ("A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify [the person to whom the manifestation is addressed] in understanding that a commitment has been made."); see, e.g., In re Herrick, 922 P.2d 942, 951 (Haw. 1996); Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998); Chen v. State, 937 P.2d 612, 616 n.1 (Wash. Ct. App.), review denied, 948 P.2d 387 (Wash. 1997).

3. See Restatement (Second), supra note 1, § 1; see e.g., Nelson v. State Farm Mut. Auto Ins. Co., 988 F. Supp. 527, 533 (E.D. Pa. 1997); Marzullo v. Stop-N-Go Food Stores of Pittsburgh, Inc., 527 A.2d 550, 558 (Pa. Super. Ct.), appeal denied, 535 A.2d 1058 (Pa. 1987).

4. Restatement (Second), supra note 1, § 235 cmt. b, at 212 ("Non-performance is not a breach unless performance is due.... When performance is due, however, anything short of full performance is a breach, even if the party who does not fully perform was not at fault and even if the defect in h[er] performance was not substantial.... Non-performance includes defective performance as well as an absence of performance."); see, e.g., Romano v. Rockwell Int'l, Inc., 926 P.2d 1114, 1119 (Cal. 1996); Taylor v. Johnston, 539 P.2d 425, 430-31 (Cal. 1975) (en banc); Woody v. Tamer, 405 N.W.2d 213, 216 (Mich. Ct. App. 1987, appeal denied); New York State Elec. & Gas Corp. v. State, 630 N.Y.S.2d 412, 414 (N.Y. App. Div.), leave denied, 662 N.E.2d 791 (N.Y. 1995).

5. The classic formulation of this hypothetical has X promising (1) to send Y to Europe at a future date and (2) to pay Y at the time of Y's departure or upon Y's return. See, e.g., 4 Arthur L. Corbin, Corbin on Contracts 852 (1951) ("[I]n 1950, A promises to take B to Europe as his courier in 1952 and to pay him $500 on return from the trip ...."). The classic formulation, however, may run afoul of the general unwillingness of American courts to apply the doctrine of anticipatory repudiation to unilateral contracts, see infra note 25, because only X is promising any future performance. This is true even under Corbin's formulation. The fact that X does not promise to pay Y until Y's return (as opposed to on Y's departure) no more obligates Y to undertake the journey than would my promise to pay you $100 if you cross the Brooklyn Bridge obligate you to cross it. See I. Maurice Wormser, The True Conception of Unilateral Contracts, 26 Yale L.J. 136, 136-38 (1916). If, on the other hand, we read "at the time of Y's departure" to impose an express or implied condition on X's promise to pay -- that is, if X is only obligated to pay if Y, in fact, departs for Europe as agreed -- or even an implied promise by Y that he will travel to Europe on X's behalf, then the doctrine should apply as readily as it would in the case of any mutually executory contract (a bilateral contract which neither party has yet fully performed).

6. See, e.g., Roehm v. Horst, 178 U.S. 1, 19 (1900) ("The parties to a contract which is wholly executory have a right to the maintenance of the contractual relations up to the time for performance, as well as to a performance of the contract when due.").

7. See, e.g., Hochster v. De la Tour, 118 Eng. Rep. 922, 926 (Q.B. 1853) ("[W]here there is a contract to do an act on a future day, there is a relation constituted between the parties in the meantime by the contract, and ... they impliedly promise that in the meantime neither will do any thing to the prejudice of the other inconsistent with that relation.").

8. See, e.g., New York Life Ins. Co. v. Viglas, 297 U.S. 672, 681-82 (1936); Roehm, 178 U.S. at 11; New York State Teamsters Conference Pension & Retirement Fund v. Pension Benefit Guar. Corp., 591 F.2d 953, 957 (D.C. Cir.), cert. denied, 444 U.S. 829 (1979); VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 6 (1st Cir. 1993); Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 523 (2d Cir. 1990); William B. Tanner Co. v. WIOO, Inc., 528 F.2d 262, 269-70 (3d Cir. 1975); Colonial Lincoln-Mercury, Inc. v. Musgrave, 749 F.2d 1092, 1102 (4th Cir. 1984); Hentz v. Hargett, 71 F.3d 1169, 1173-74 (5th Cir.), cert. denied, 517 U.S. 1225 (1996); City of Memphis ex rel. Memphis Light, Gas & Water Div. v. Ford Motor Co., 304 F.2d 845, 852 (6th Cir. 1962); Wisconsin Power & Light Co. v. Century Indem. Co., 130 F.3d 787, 793 (7th Cir. 1997); National Liberty Corp. v. Wal-Mart Stores, Inc., 120 F.3d 913, 916 (8th Cir. 1997); In re James E. O'Connell Co., 799 F.2d 1258, 1261 (9th Cir. 1986); Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co., 104 F.3d 1205, 1213-14 (10th Cir. 1997); Box v. Metropolitan Life Ins. Co., 168 So. 220, 222 (Ala. 1936); Grace v. Insurance Co. of N. Am., 944 P.2d 460, 467 (Alaska 1997); Snow v. Western Sav. & Loan Ass'n, 730 P.2d 204, 210-11 (Ariz. 1986) (en banc); Jim Orr & Assocs. v. Waters, 773 S.W.2d 99, 101-02 (Ark. 1989); Romano, 926 P.2d at 1119; Johnson v. Benson, 725 P.2d 21, 25 (Colo. Ct. App. 1986, review denied); Gilman v. Pedersen, 438 A.2d 780, 781 (Conn. 1981); Carteret Bancorp v. Home Group, Inc., 1988 WL 3010, *5 & n.2 (Del. Ch. Jan. 13, 1988); Reiman v. International Hospitality Group, Ltd., 614 A.2d 925, 928 (D.C. 1992); Hospital Mortgage Group v. First Prudential Dev. Corp., 411 So. 2d 181, 182 (Fla. 1982); Brack v. Brownlee, 273 S.E.2d 390, 391-92 (Ga. 1980); PR Pension Fund v. Nakada, 809 P.2d 1139, 1144 (Haw. Ct. App.), cert. denied, 841 P.2d 1075 (Haw. 1991); Industrial Leasing Corp. v. Thomason, 532 P.2d 916, 920 (Idaho 1974); Eager v. Berke, 142 N.E.2d 36, 38 (Ill. 1957); Jay County Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, 692 N.E.2d 905, 910-11 (Ind. Ct. App.), review denied, 706 N.E.2d 167 (Ind. 1998); Berryhill v. Hatt, 428 N.W.2d 647, 655-56 (Iowa 1988); Hawkinson v. Bennett, 962 P.2d 445, 471-72 (Kan. 1998); Webb v. Welcome Wagon, Inc., 255 S.W.2d 459, 461 (Ky. 1953); Marek v. McHardy, 101 So. 2d 689, 695 (La. 1958); Wholesale Sand & Gravel, Inc. v. Decker, 630 A.2d 710, 711 (Me. 1993); String v. Steven Dev. Corp., 307 A.2d 713, 720 (Md. 1973); Carpenter v. Smith, 383 N.W.2d 248, 250 (Mich. Ct. App. 1985, appeal denied); Space Ctr., Inc. v. 451 Corp., 298 N.W.2d 443, 450-51 (Minn. 1980); Wander Ltd. v. Krouse & Co., 368 So. 2d 235, 237 (Miss. 1979); Daugherty v. Bruce Realty & Dev., Inc., 892 S.W.2d 332, 335-36 (Mo. Ct. App. 1995, review denied); Chamberlin v. Puckett Constr., 921 P.2d 1237, 1239-40 (Mont. 1996); Chadd v. Midwest Franchise Corp., 412 N.W.2d 453, 458 (Neb. 1987); Covington Bros. v. Valley Plastering, Inc., 566 P.2d 814, 817 (Nev. 1977); Hoyt v. Horst, 201 A.2d 118, 124 (N.H. 1964); Gaglia v. Kirchner, 721 A.2d 1028, 1031-32 (N.J. Super. Ct. App. Div.), cert. denied, 733 A.2d 496 (N.J. 1999); Hoggard v. City of Carlsbad ex rel. Forrest, 909 P.2d 726, 728-29 (N.M. Ct. App. 1995), cert. denied, 908 P.2d 1387 (N.M. 1996); Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 705 N.E.2d 656, 659 (N.Y. 1998); First Union Nat'l Bank v. Naylor, 404 S.E.2d 161, 163 (N.C. Ct. App. 1991); Sawyer Farmers Coop. Ass'n v. Linke, 231 N.W.2d 791, 794-95 (N.D. 1975); McDonald v. Bedford Datsun, 570 N.E.2d 299, 301 (Ohio Ct. App. 1989); Paul Hardeman, Inc. v. U.S. Fidelity & Guar. Co., 486 P.2d 726, 730 (Okla. 1971); Mohr v. Lear, 395 P.2d 117, 120-21 (Or. 1964); Nuzum v. Spriggs, 55 A.2d 402, 403 (Pa. 1947); Griffin v. Zapata, 570 A.2d 659, 662 (R.I. 1990); Glover v. North Carolina Mut. Life Ins. Co., 368 S.E.2d 68, 71 (S.C. Ct. App. 1988); Byre v. City of Chamberlain, 362 N.W.2d 69, 75 (S.D. 1985); Wright v. Wright, 832 S.W.2d 542, 545 (Tenn. Ct. App. 1991, appeal denied); Murray v. Crest Constr., Inc., 900 S.W.2d 342, 344 (Tex. 1995); Cobabe v. Stanger, 844 P.2d 298, 303 (Utah 1992); Lowe v. Beaty, 485 A.2d 1255, 1257-58 (Vt. 1984); Lenders Fin. Corp. v. Talton, 455 S.E.2d 232, 236-37 (Va. 1995); Wallace Real Estate Inv., Inc. v. Groves, 881 P.2d 1010, 1019-20 (Wash. 1994) (en banc); Annon v. Lucas, 185 S.E.2d 343, 350 (W. Va. 1971); Caporali v. Washington Nat'l Ins. Co., 307 N.W.2d 218, 223 (Wis. 1981); Connor v. Bogrett, 596 P.2d 683, 688 (Wyo. 1979).

9. See, e.g., City of Fairfax v. Washington Metro. Area Transit Auth., 582 F.2d 1321, 1325 (4th Cir. 1978), cert. denied, 440 U.S. 914 (1979); In re LCS Homes, Inc., 103 B.R. 736, 744 (Bankr. E.D. Va. 1989); Farwell Constr. Co. v. Ticktin, 376 N.E.2d 621, 627 (Ill. App. Ct. 1978).

10. See, e.g., Penthouse Int'l, Ltd. v. Dominion Fed. Sav. & Loan Ass'n, 855 F.2d 963, 978 (2d Cir. 1988), cert. denied, 490 U.S. 1005 (1989); Schilling v. Book, 405 N.E.2d 824, 828-29 (Ill. App. Ct. 1980).

11. See, e.g., P.N. Gray & Co. v. Cavalliotis, 276 F. 565, 570 (E.D.N.Y. 1921), aff'd, 293 F. 1018 (2d Cir. 1923); Brewer v. Simpson, 349 P.2d 289, 302 (Cal. 1960); Griffin, 570 A.2d at 662.

12. See, e.g., Sullivan v. Bullock, 864 P.2d 184, 188 (Idaho Ct. App. 1993).

13. Failing to provide adequate assurance of performance in response to a reasonable request by the promisee may constitute an anticipatory breach. See Restatement (Second), supra note 1, § 251; U.C.C. § 2-609 (1999); see, e.g., C.L. Maddox, Inc. v. Coalfield Servs., Inc., 51 F.3d 76, 81 (7th Cir. 1995); Banco Int'l, Inc. v. Goody's Family Clothing, 54 F. Supp. 2d 765, 774 (E.D. Tenn. 1999); United States ex rel. Virginia Beach Mechanical Servs., Inc. v. SAMCO Constr. Co., 39 F. Supp. 2d 661, 671 (E.D. Va. 1999).

14. See, e.g., Shaughnessy v. D'Antoni, 100 F.2d 422, 425-26 (5th Cir. 1938). But cf. Holt v. Utica Mut. Ins. Co., 759 P.2d 623, 629 (Ariz. 1988) (questioning, but not resolving, whether an insurer's failure to respond to a demand for defense might constitute an anticipatory repudiation).

15. See, e.g., T.A.D. Jones Co. v. Winchester Repeating Arms Co., 55 F.2d 944, 948 (D. Conn.), aff'd, 61 F.2d 774 (2d Cir. 1932), cert. denied, 288 U.S. 609 (1933); In re St. Mary Hosp., 101 B.R. 451, 460 (Bankr. E.D. Pa. 1989); Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 300 (Tex. 1997).

16. See, e.g., RTC v. Cramer, 6 F.3d 1102, 1108 (5th Cir. 1993); Truman L. Flatt & Sons Co. v. Schupf, 649 N.E.2d 990, 995 (Ill. App. Ct.), appeal denied, 657 N.E.2d 640 (Ill. 1995); Hawkinson v. Bennett, 962 P.2d 445, 472 (Kan. 1998).

17. See, e.g., In re LCS Homes, Inc., 103 B.R. 736, 743 (Bankr. E.D. Va. 1989); In re Scott, 82 B.R. 760, 761 (Bankr. E.D. Pa. 1988); Glass v. Anderson, 596 S.W.2d 507, 511 (Tex. 1980); Two-Way Tronics, Inc. v. Greater Wash. Educ. Television Ass'n, 141 S.E.2d 742, 746 (Va. 1965).

18. See, e.g., Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 523 (2d Cir. 1990); United States Overseas Airlines, Inc. v. Compania Aerea Viajes Expresos de Venezuela, 246 F.2d 951, 952 (2d Cir.), cert. denied, 355 U.S. 893 (1957); Alabama Football, Inc. v. Greenwood, 452 F. Supp. 1191, 1194-96 (W.D. Pa. 1978); Stolteben v. General Foods Corp., 79 F. Supp. 228, 235 (S.D.N.Y. 1948); St. Mary Hospital, 101 B.R. at 460; Nelson v. Cannon, 616 P.2d 56, 60 (Ariz. Ct. App. 1980); Moehling v. Pierce, 121 N.E.2d 735, 737 (Ill. 1954).

19. See, e.g., Cummings v. Universal Pictures Co., 62 F. Supp. 611, 629 (S.D. Cal. 1944); Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 211 (Tex. 1999).

20. See, e.g., Carr v. Carr, 751 S.W.2d 781, 788 (Mo. Ct. App. 1988); Dembeck v. Hassler, 669 N.Y.S.2d 571, 572 (N.Y. App. Div.), leave denied, 700 N.E.2d 319 (N.Y. 1998); Valdina Farms, Inc. v. Brown, Beasley & Assocs., 733 S.W.2d 688, 692-93 (Tex. App. 1987, no writ). See generally John T. Whealen, Note, Contracts -- Acts Constituting Renunciation and Liabilities Therefor, 2 Kan. L. Rev. 408 (1954) (discussing the circumstances under which a repudiating promisor may or may not withdraw a repudiation at common law); Note, Withdrawal of Anticipatory Repudiation of Contractual Obligations, 28 Colum. L. Rev. 1062 (1928) (same); Lauriz Vold, Withdrawal of Repudiation After Anticipatory Breach of Contract, 5 Tex. L. Rev. 9 (1926) (same).

21. See, e.g., Kinsey v. United States, 852 F.2d 556, 558 (Fed. Cir. 1988); Franconia Assocs. v. United States, 43 Fed. Cl. 702, 710 (1999); Wolgin v. Atlas United Fin. Corp., 397 F. Supp. 1003, 1014 (E.D. Pa. 1975), aff'd, 530 F.2d 963 (3d Cir.), and aff'd, 530 F.2d 966 (3d Cir. 1976); Daum v. Superior Court, 39 Cal. Rptr. 443, 446 (Cal. Ct. App. 1964).

22. See, e.g., McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101, 104 (3d Cir. 1955); Pacific Coast Eng'g Co. v. Merritt-Chapman & Scott Corp., 411 F.2d 889, 895 (9th Cir. 1969); In re LCS Homes, Inc., 103 B.R. 736, 744 (Bankr. E.D. Va. 1989); St. Mary Hospital, 101 B.R. at 458; Snow v. Western Sav. & Loan Ass'n, 730 P.2d 204, 210 (Ariz. 1987) (en banc); Martin v. Kavanewsky, 255 A.2d 619, 621 (Conn. 1969); McClelland v. New Amsterdam Cas. Co., 185 A. 198, 200 (Pa. 1936); Link v. Weizenbaum, 326 S.E.2d 667, 668 (Va. 1985).

23. See, e.g., New York Life Ins. Co. v. Viglas, 297 U.S. 672, 681 (1936); Gold Mining & Water Co. v. Swinerton, 142 P.2d 22, 27 (Cal. 1943); Glass v. Anderson, 596 S.W.2d 507, 510 (Tex. 1980).

24. See, e.g., Townewest Homeowners Ass'n v. Warner Communication Inc., 826 S.W.2d 638, 640 (Tex. App. 1992, no writ).

25. See, e.g., General Am. Tank Car Corp. v. Goree, 296 F. 32, 36 (4th Cir.), cert. denied, 266 U.S. 610 (1924); Reprosystem, B.V. v. SCM Corp., 630 F. Supp. 1099, 1101 (S.D.N.Y. 1986); Harris v. Time, Inc., 237 Cal. Rptr. 584, 588 (Cal. Ct. App. 1987); Mabery v. Western Cas. & Sur. Co., 250 P.2d 824, 828 (Kan. 1952); Burch v. Union Life Ins. Co., 319 S.W.2d 908, 913 (Mo. Ct. App. 1959). Professor Corbin argued that this exclusion was based upon the erroneous idea that the reason for holding an anticipatory repudiation to be a breach of contract is that otherwise the injured party must himself continue to be ready to perform on his own part. It would follow from this that, if the injured party never had any performance to render on his part, or, having such a performance, has already fully performed it, it would not be necessary for his protection to give him an immediate action for damages for the anticipatory breach.... [T]he rule allowing an action for an anticipatory breach cannot properly be rested upon this reason. The reasons upon which it can actually be sustained are equally applicable to unilateral contracts. The harm caused to the plaintiff is equally great in either case; and it seems strange to deny to a plaintiff a remedy of this kind merely on the ground that he has already fully performed as his contract has required.4 Corbin, supra note 5, at 864-65 (footnote omitted); see also Comment, Anticipatory Repudiation: Anachronistic Limitations, 1959 Duke L.J. 165, 167-70 (arguing for the extension of the anticipatory repudiation doctrine to unilateral contracts) [hereinafter Anachronistic Limitations]; Sam F. Whitlock, Jr., Note, Contracts: Anticipatory Breach of Unilateral Contracts, 4 Okla. L. Rev. 112, 112-14 (1951) (same).

26. See, e.g., Smyth v. United States, 302 U.S. 329, 356 (1937); Roehm v. Horst, 178 U.S. 1, 17-18 (1900); Quick v. American Steel & Pump Corp., 397 F.2d 561, 564 (2d Cir. 1968); John Hancock Mut. Life Ins. Co. v. Cohen, 254 F.2d 417, 424-26 (9th Cir. 1958); Wallace Clark & Co. v. Acheson Indus., Inc., 422 F. Supp. 20, 23 & n.6 (S.D.N.Y. 1976); Bird v. Computer Tech., Inc., 364 F. Supp. 1336, 1345 (S.D.N.Y. 1973); McCready v. Lindenborn, 65 N.E. 208, 210-11 (N.Y. 1902); Romar v. Alli, 501 N.Y.S.2d 877, 878 (N.Y. App. Div. 1986); Crouse v. Nantucket Village Dev. Co., 460 N.E.2d 1389, 1391 (Ohio Ct. App. 1983); Greguhn v. Mutual of Omaha Ins. Co., 461 P.2d 285, 287 (Utah 1969). But see, e.g., Williams v. Mutual Benefit Health & Accident Ass'n, 100 F.2d 264, 264-65 (5th Cir. 1938) (applying Texas law) (holding that insurer who repudiated its obligation to pay annuity benefits to its insured had anticipatorily breached and could be immediately sued for payments not yet due); see also Anachronistic Limitations, supra note 25, at 169-70 ("[W]hy should the fact that the consideration has passed effectively deprive a promisee of a reasonable expectation that he will be duly recompensed for the consideration he has conveyed? So long as this latter exception to the doctrine governing anticipatory breach of contract is recognized, the only expectancy of a promisee in such [a] situation is a future law suit." (footnote omitted)). The doctrine of anticipatory breach generally does not apply to an installment payment contract that does not include an acceleration clause. See, e.g., Rosenfeld v. City Paper Co., 527 So. 2d 704, 705-06 (Ala. 1988); Mabery v. Western Cas. & Sur. Co., 250 P.2d 824, 828-29 (Kan. 1952). Indeed, the use of the "acceleration of maturity of payment" clause is in recognition of the nonapplicability of the anticipatory breach doctrine in installment payment contracts. Once the promisee has done all there is for him to do under the contract and the promisor's obligation is confined to payment by installments as specified by the contract, the doctrine of anticipatory breach has no field of operation and will not intercede to rescue the promissee [sic] from the consequences of the absence of an acceleration clause.Rosenfeld, 527 So. 2d at 706. Again, Professor Corbin disagreed: [T]he refusal to recognize an anticipatory repudiation of a unilateral money debt as an immediate breach is mainly to be found in the notion expressed by the unfortunate phrase "accelerate the date of maturity." Money due next year cannot be made due now by the debtor's saying that he is not going to pay it. But neither can services that by the contract are to be performed next year be rendered immediately performable by the employee's saying that he is not going to render the service. The same is true with respect to contracts for the sale of goods or the conveyance of land. It is probable that the court should never decree the specific performance of these duties ahead of the time fixed for performance by the contract. What the plaintiff asks for and what he is given is a judgment for money damages. It is merely an accidental circumstance that where the contractual duty is a duty to pay money, the performance that is expressly promised is identical in character with the performance that is required by a judgment for money damages.... Therefore, a plaintiff should not be deprived of his remedy in damages for an anticipatory repudiation merely because the promised performance is similar in character to the performance that is required by the judicial remedy that is commonly given for all kinds of breaches of contract.4 Corbin, supra note 5, at 872-73 (footnote omitted); see also Anachronistic Limitations, supra note 25, at 170 ("[I]t is highly doubtful that there is any less 'mutuality of obligation' involved in money contracts than in such other contracts as Mr. Justice Fuller would have conceded to fall 'within the reason of the rule.'" (quoting Roehm v. Horst, 178 U.S. 1, 17 (1900) (footnote omitted)); Whitlock, supra note 25, at 113-14 ("If a greater burden than contracted for must fall either upon the promisee in the form of a multiplicity of suits, or upon the promisor in the form of a lump sum judgment, ... such burden [should] be placed upon the wrongdoer [the promisor] rather than the innocent party [the promisee]."). In any event, we should distinguish a unilateral contract to pay money -- i.e., one in which the promisor vows to pay the promisee a sum of money, in installments or in a lump sum, at some future date in exchange for some consideration already performed by the promisee (e.g., a promissory note whereby the promisor agrees to pay back a cash loan from the promisee plus interest or whereby the promisor agrees to pay for an automobile in monthly installments in exchange for the immediate delivery of the automobile from the promisee to the promisor) -- from a bilateral contract in which the promisor vows to pay money in exchange for some future performance by the promisee (e.g., a contract whereby the promisor agrees to purchase a refrigerator by making monthly layaway payments until the full purchase price is satisfied, at which time the promisee agrees to deliver the refrigerator). Courts generally refuse to apply the doctrine of anticipatory breach to the former. On the other hand, if a contract is bilateral and not yet fully performed by the non-repudiating promisee, she can at once maintain suit against the repudiator, even though the latter is only obligated by the contract to pay money in exchange for the promisee's performance. See, e.g., Equitable Trust Co. of N.Y. v. Western Pac. Ry., 244 F. 485, 501 (S.D.N.Y. 1917) ("[I]f performance remains mutually executory, the doctrine still applies, even though the promise is only to pay money, because that is the situation in the ordinary contract of sale repudiated by the buyer."), aff'd, 250 F. 327 (2d Cir.), cert. denied, 246 U.S. 672 (1918).

27. See, e.g., Sauer v. Xerox Corp., 938 F. Supp. 155, 165-66 (W.D.N.Y. 1996); Long Island R.R. v. Northville Indus. Corp., 362 N.E.2d 558, 563 (N.Y. 1977); Sethre v. Washington Educ. Ass'n, 591 P.2d 838, 843 (Wash. Ct. App. 1979, review denied); see also Restatement (Second), supra note 1, § 253 cmt. c. See generally 11 Walter H.E. Jaeger, Williston on Contracts 146 (3d ed. 1968