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Discussions Trans-Lex Administrative Information Document-ID: 945500 [click here to copy citation to clipboard] Please Cite as: "http://www.trans-lex.org/945500". Social Networks
No. VI.5 - Anticipatory breachWhen a party to a contract absolutely and unequivocally expresses an intention – expressly or tacitly – not to perform, or when it becomes otherwise clear, after the conclusion of the contract, that there will be a fundamental non-performance, the other party may terminate the contract. Principle VI.1 applies. Trans-Lex Commentary [open]Please click below for (full) text references [doctrine] [national legislation] [principles / restatements] [model laws]There are no Threads related to this document. Open one by yourself. |
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Please cite as: "Commentary to Trans-Lex Principle No. VI.5 - Anticipatory breach, http://www.trans-lex.org/945500"
1 This Principle equates a fundamental non-performance that can be expected with actual non-performance. In order to be equated with actual non-performance, however, the future non-performance must meet one of the two tests provided for in the Principle.
2 The first test relates to a declaration of the party that it will not perform. This declaration, whether express or tacit, however, must be more than a mere general statement or indication of intent. Rather, the party must express this intention "absolutely and unequivocally". This means 1) that the declaration has left no alternative to non-performance and 2) that there must be no doubt left as to the party's intention not to perform.
3 Absent such an express or tacit declaration of the party, future non-performance is equated with actual non-performance only if the circumstances make it reasonably clear that there will be a fundamental non-performance. Contrary to the first test, this is an objective, rather than a subjective test.
4 If a future non-performance can be equated with actual non-performance under one of the two tests, the other party has the right to terminate the contract pursuant to Principle VI.1.