A. By Renunciation or Repudiation A total breach of contract has occurred when a person who has promised to render performance under a contract thereafter has stated or indicated to the person to whom he/she has promised the performance either that he/she will not or cannot perform that which he/she has promised. Therefore, if you find as a fact that _______ promised that he/she would perform the contract, and that he/she thereafter stated or indicated to ______ that he/she would not, or could not perform the contract then ____ has committed a total breach of contract.Cases and Comment:
This charge follows the rule set out in Restatement, Contracts (1932) Sec. 318(a). The Restatement language is similar to that in Samel v. Super, 85 N.J.L. 101 (Sup. Ct. 1913) in which the Court held that whether seller's refusal to perform a contract for the sale of a retail food business constituted an anticipatory breach was a fact question for the jury. In the course of its opinion the Court quoted from O'Neill v. Supreme Council, 70 N.J.L. 410 (Sup. Ct. 1904):
"Where a contract embodies mutual and interdependent conditions and obligations, and one party either disables himself/herself from performing, or repudiates in advance his/her obligations under the contract and refuses to be longer bound thereby, communicating such repudiation to the other party, the latter party is not only excused from further performance on his/her part, but may, at his/her option, treat the contract as terminated for all purposes of performance, and maintain an action at once for the damages occasioned by such repudiation, without awaiting the time fixed by the contract for performance by the defendant." (at p. 103)
See Parker v. Pettit, 43 N.J.L. 512 (Sup. Ct. 1881); Stopford v. Boonton Molding Company, Inc., 56 N.J. 169 (1970); Scoredisc Service Corp. v. Feldman, 10 N.J. Misc. 228 (Sup. Ct. 1932). Conduct indicating repudiation of a contract has the same effect as language. Ross Systems v. Linden Dari-Delite, Inc., 35 N.J. 329, 340 (1961); Ferber v. Cona, 89 N.J.L. 135 (Sup. Ct. 1916), aff. 91 N.J.L. 688 (E. & A. 1918); Stein v. Francis, 91 N.J.E. 205 (Ch. 1919); Storms v. Corwin, 7 N.J. Misc. 931 (Sup. Ct. 1929).
The anticipatory breach must be a "material breach" to discharge the other party. Ross Systems, supra, at p. 341; Restatement, Contracts (1932), Sec. 397.
As to the remedy for anticipatory breach, see Stopford, supra, (1970) where the anticipatory breach was discontinuance of a pension plan in which plaintiff-employee had vested rights. Discussing the question of damages, Justice Francis said:
"Here, the plaintiff was presented with a clear choice of alternative remedies, i.e., specific performance which would produce periodic payments or a lump sum recovery which he/she chose to pursue." (at p. 195)
Where defendant repudiates the contract, after plaintiff has performed, plaintiff may be entitled to restitution of what he/she gave, as an alternative remedy. Shea v. Willard, 85 N.J. Super., 446, at p. 451 (App. Div. 1964). B. Where Promisor Makes Performance Impossible Where ___________ has agreed to perform a certain thing and prior to the time for performance he/she has rendered by his/her conduct substantial performance of that thing impossible, he/she has committed a total breach of contract.Cases and Comment:
This charge is based upon Restatement, Contracts (1932), Sec. 318(b) and (c). In Parker v. Pettit, 43 N.J.L. 512 (Sup. Ct. 1881) defendant agreed to deliver straw to plaintiff. His/Her conduct in selling the straw to a third party was held evidence of an anticipatory breach. in Stopford v. Boonton Molding Company, Inc., 56 N.J. 169 (1970) the anticipatory breach was discontinuance of a pension plan. See in accord:
McCloskey v. Mineveld Steel, 22 F.2d 101 (3d Cir. 1955); Scaduto v. Orlando, 381 F.2d 587 (2d Cir. 1967).
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, supra, may be "cured" by reasonable notice of intent to render proper performance.
Model Civil Jury Charges
