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Anticipatory breach of contract

  • It occurs when, prior to the due date of performance, the promisor absolutely refuses or disables himself from the performance of his obligations Sec 39. In other words, it is a declaration by one party, of his intention not to perform his obligations under the contract. Thus, an anticipatory breach is the premature destruction of the contract, i.e. the repudiation of the contract before the due date of performance.

Amar contracted to supply to Akbar 100 pieces of spark plugs on 2nd December 2009. But before the due date of performance (i.e., 2nd December), Amar informed Akbar that he is not going to supply the spark plugs at all. On Amar’s refusal to supply the goods, the anticipatory breach of the contract occurs and Akbar put an end to the contract.



X contracts to sell his car to Y on 15th March 2014. But before that date, he sells his car to Z. This is also a case of anticipatory breach of contract. Here, the anticipatory breach of contract is implied from the conduct of X. this is a case wherein the party has disabled himself from fulfilling the obligation to the contract by his own act.

Consequences of Anticipatory breach

In case of anticipatory breach, the aggrieved party has the following options:
  • He can rescind the contract and claim damages for the breach of the contract without waiting until the due date for performance
  • He may treat the contract as operative and wait till the due date for performance and claim damages if the promise still remains unperformed
  • If the aggrieved party treats the contract as operative and waits till the due date for performance, the consequences will be as follows:
  • The promisor may perform his promise on or before the due date of performance and the promisee will be bound to accept the performance
  • The promisor may take advantage of the discharge by supervening impossibility arising between the date of anticipatory breach and the due date of the performance and in such case, the promisee shall lose his right to sue for damages

Suresh, a farmer, agreed to sell his entire crop of wheat to Ramesh at ₹ 8,000 per ton, to be delivered on 20th October. On 1st October, Suresh informed Ramesh that he was not going to supply the goods. Ramesh decided not to rescind the contract on 1st October and to wait till 20th October. On 18th October, the entire crop was destroyed by fire without the fault of either party. Since the contract had become void on the ground of impossibility of performance, Ramesh had lost his right to sue Suresh for damages.

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