M. Anticipatory Breach (5/98) If the defendant clearly indicates through words or conduct before the time for performance arrived that defendant would not or could not perform the contract, the plaintiff would be entitled to treat that indication as a breach.See footnote 1 To qualify as a breach, the defendant's indication of non-performance must have been definite and clear. A defendant can take back a previously stated or demonstrated unwillingness or inability to perform if the repudiation of the contract is
withdrawn before the plaintiff: [Choose option: (1) substantially changes position; (b) brings an action for damages.]See footnote 2
Footnote: 1 The anticipatory breach must be a "material breach" to discharge the other party. Ross Systems v. Linden Dari Delite, Inc., 35 N.J. 329 341 (1961). Whether seller's refusal to perform a contract for sale of retail food business constituted an anticipatory breach is a fact question for the jury. Semel v. Super, 85 N.J.L. 101 (Sup. Ct. 1913).
Footnote: 2 See, Neptune Research & Development v. Teknics Industry System, 235 N.J. Super. 522, 534 (App. Div. 1989) and Miller and Sons Bakery Co. v. Selikowitz, 8 N.J. Super. 118, 123 (App. Div. 1950).
Note: Where defendant repudiates the contract after plaintiff has performed, plaintiff may be entitled to restitution of what plaintiff gave, as an alternative remedy. Shea v. Willard, 857 N.J Super. 446, 451 (App. Div. 1984).
Note: Where the contract involves the sale of goods the rights of the parties are governed by N.J.S.A. 12A:2-610. As to anticipatory breach of installment sales contracts, the court said in Graulich Caterer, Inc. v. Hans Holterbosch, 101 N.J. Super. 61 (App. Div. 1968): "Replacing considerations of anticipatory repudiation and the material injury with the test of substantial impairment, N.J.S. 12A:2-612 adopts a more restrictive seller-oriented approach favoring 'the continuance of the contract in the absence of an overt cancellation.' See Comment to Sec. 12A:2-612, par. 6; also New Jersey Study Comment, par. 2; Hawkland supra, 3, c. (3), p. 116. To allow an aggrieved party to cancel an installment contract, N.J.S. 12A:2-612(3) requires (1) the breach be of the whole contract which occurs when the nonconformity of 'one or more installments substantially impairs the value of the whole contract;' and (2) that seasonable notification of cancellation has been given if the buyer has accepted a nonconforming installment." (At p. 75).
Note that under N.J.S.A. 12A:2-508, a defective tender of goods subject to the Sales Act (N.J.S.A. 12A:2-101 et seq.) which may have been an anticipatory breach, as in Parker v. Pettit, 43 N.J.L. 512 (Sup. Ct. 1881) may be "cured" by reasonable notice of intent to render proper performance.
Model Civil Jury Charges
