Anticipatory Repudiation If promises are mutually dependent, they may be: (1) precedent: performance by one party must

come before performance by the other (2) subsequent: performance by one party to come after performance by the other has been completed (3) concurrent: performance of promise at the same time K & G Construction v. Harris Modern Rule: presumption that mutual promises in a K are dependent -performance by one is conditioned on performance by the other Here, subcontractor's promise was precedent to contractors promise of payment Sub's destruction of wall served as a material breach--> Contractor justified in refusing to make Aug 10th payment. -Contractor viewed sub's breach as only partial -Sub's failure to continue performance constituted breach -Contractor able to hold sub liable for breach 241: To determine whether failure to perform is material, consider: (a): extent injured party will be deprived of the benefit reasonably expected (b): extent to which injured party may be compensated for the part-benefit deprived of (c): extent to which the party failing to perform will suffer forfeiture (d): likelihood party failing to perform will cure his failure (e): extent to which behavior of party failing to perform comports with standards of good faith/ fair dealing. 242: In determining when one party's uncured material failure to perform discharges the other party's duty consider: (a): 241 (b): reasonably apparent to injured party that delay may prevent or hinder reasonable substitute arrangements (c): material failure to perform on a stated day does not discharge the other party's duties UNLESS lang otherwise stipulates Walker & Co. v. Harrison Issue: Did Walker materially breach his performance upon the K thereby allowing D to repudiate? Holding: No

P's failure to perform certain upkeep on the sign did not constitute material breach allowing D to repudiate. Repudiation by D therefore is itself a material breach. Zulla Steel v. A&M Gregos Facts: D: contractor P: sub P left job unfinished when D failed to pay progress payments in accordance with the K. PH: Trial court held for P stating D had committed a material breach and P was entitled to repudiate. Affirmed Anticipatory Repudiation Hochster v. De La Tour P: courier to accompany D on a trip D rescinds K, does not want to travel P sues D for breach Held for P Daniels v. Newton Against De La Tour Renunciation of an agreement before the designated time of performance is rescission and excusable. Equitable Trust Similar to De la Tour A K for a certain time includes within it by implication an engagement not deliberately to compromise the probability of performance Wholesale Sand v. Decker P: Wholesale

D: Decker P to perform construction work for D. P did not perform duties in a timely manner. D terminated K and hired another to do the work. Issue: Does P's conduct constitute an anticipatory repudiation of the K? Holding: Yes. Rule: Anticipatory repudiation of a K is a unequivocal manifestation of intent on the part of the repudiator that he will NOT render the promised performance when the time fixed for it in the K arrives. -manifestation of such intent achieved by words or conduct Unique v. Zotos Rule: If a party to a K demands a performance from the other party not K'ed for, making such performance conditional and not being met is the same as anticipatory repudiation. US v. Seacoast Gas Seacoast entered into K to supply gas to a federal housing project Seacoast intended to cancel K due to FHA's alleged breach -letter served as anticipatory breach -did not timely repudiate letter---> FHA K'ed with another Held for FHA/US 250: Repudiation is the obligor indicates it will breach by non-performance 253: Repudiation gives rise to a claim for damages and discharges the other party of their duty 256: Nullification of repudiation acceptable if such notification comes to the attention of the injured party before he materially changes his position in reliance on the repudiation.