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Foundational Principles of Contract Law$
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Melvin A. Eisenberg

Print publication date: 2018

Print ISBN-13: 9780199731404

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780199731404.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 October 2021

The Principle of Anticipatory Repudiation

The Principle of Anticipatory Repudiation

(p.673) Forty-Eight The Principle of Anticipatory Repudiation
Foundational Principles of Contract Law

Melvin A. Eisenberg

Oxford University Press

Chapter 48 concerns anticipatory repudiation, that is, repudiation of a contract by a promisor before she is required to perform. An anticipatory repudiation may consist of either an expression by the promisor that she intends not to perform all or a significant part of her duties under the contract, or conduct by the promisor that leads to her inability or apparent inability to perform all or a significant part of her duties under the contract. Many courts have held that an expression will constitute an anticipatory repudiation only if the expression is an unequivocal repudiation of the contract. This strict test is an unjustified departure from the general principles of interpretation, should not be followed, and is not followed by all courts.

Keywords:   anticipatory repudiation, unequivocal repudiation, inability to perform, apparent inability, principles of interpretation

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