When you enter into a contract with another party, each of you is expected to fulfill the terms and conditions outlined in the agreement. However, not all contract obligations are ultimately fulfilled.
For example, sometimes, one party or another may start to show signs or take actions indicating they will not fulfill their obligations as agreed upon, which constitutes an anticipatory breach of contract. Also referred to as anticipatory repudiation, it may result in damages to the innocent party who relied on the contract’s fulfillment.
Ways you can mitigate anticipatory breach of contract
To avoid the potential damages and disruptions caused by an anticipatory breach of contract, consider the following several remedies:
- Rescission: If the other party has clearly indicated their intent not to fulfill their obligations under the contract, the innocent party may choose to rescind or cancel the contract. This would release both parties from their obligations under the agreement, allowing them to pursue other options without further liability. Rescission can help mitigate potential damages by ending the contract before further harm occurs.
- Demand performance: When you suspect that the other party might not fulfill their obligations, you can demand assurance of performance. This involves formally requesting the party to confirm their intention and ability to fulfill the contract as agreed upon. If they fail to provide satisfactory assurance, you may have grounds to terminate the contract and seek damages.
- Injunction: You can seek an injunction from a court to prevent the other party from taking actions that would further breach the contract or cause irreparable harm. This legal remedy can be particularly useful in situations where monetary damages alone may not suffice to remedy the breach.
- Seek damages: When the other party breaches the contract anticipatorily, you can pursue damages to compensate for any losses incurred as a result of their actions. These damages may include compensatory damages to cover direct financial losses, consequential damages for indirect losses that were foreseeable at the time of contracting, and possibly punitive damages if the breach was particularly egregious.
Legal guidance is crucial when considering recourse for anticipatory breach of contract, as the specific circumstances of each case can greatly impact the appropriate course of action.