Material Breach & Anticipatory Repudiation
Contracts & Sales · Lesson 05
Material Breach & Anticipatory Repudiation
這一課問的是：違約何時嚴重到足以免除另一方的履行義務？以及 —— 在履行期還沒到、就先「明白拒履行」時又該怎麼處理？
Actor
Act
Object
Standard
Consequence
Visual Scene · the picture in your head
Issue. When does a breach excuse the non-breaching party — and what about a repudiation before performance is even due?
這一課問的是：違約何時嚴重到足以免除另一方的履行義務？以及 —— 在履行期還沒到、就先「明白拒履行」時又該怎麼處理？
Core Terminology · 7 must-know
Tap a card to flip and reveal the meaning.
breach
Tap to see meaning
Failure to perform a contractual duty when performance is due.
違約：履行期屆至時未履行。
material breach
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A breach that substantially deprives the other party of what was bargained for.
重大違約：實質剝奪對方所換取之利益。
minor breach
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Breach that does not substantially deprive; non-breaching party must still perform.
輕微違約：未實質剝奪；非違約方仍須履行。
anticipatory repudiation
Tap to see meaning
Clear, unequivocal statement before performance is due that party will not perform.
預期違約：履行期前明確、不可變之不履行表示。
adequate assurance
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Demand a party may make on reasonable grounds for insecurity (UCC §2-609; Restatement §251).
充分保證之請求。
retraction
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Repudiating party may retract before non-repudiating party materially changes position.
撤回。
substantial performance
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CL: full performance with only minor deviations — discharges the duty.
實質履行（CL）。
Issue · what this lesson is really about
When does a breach excuse the non-breaching party — and what about a repudiation before performance is even due?
這一課問的是：違約何時嚴重到足以免除另一方的履行義務？以及 —— 在履行期還沒到、就先「明白拒履行」時又該怎麼處理？
Trigger words & phrases that should flag this issue:
failed to performrefused to performI will not performmaterially deprivedcannot continuedemanded assurance
Expression Bank · how lawyers actually say it
Six function → sentence patterns. Use these in essay applications.
| Function | English sentence | 中文 |
|---|---|---|
| State breach | D failed to perform when performance was due. | D 於履行期未履行。 |
| Materiality test | Because the breach substantially deprived P, the breach is material. | 因實質剝奪 P，違約為重大。 |
| Identify minor | D performed substantially; deviation though breach does not excuse P. | D 已實質履行；輕微違約不免除 P。 |
| State repudiation | D's statement is a clear, unequivocal refusal to perform when performance falls due. | D 之陳述明確且不可變地拒履行。 |
| Apply assurance | Reasonable grounds for insecurity justify P's demand for adequate assurance. | 合理不安可請求充分保證。 |
| State consequence | P may suspend P's own performance and sue at once for damages. | P 可暫停履行並立即起訴。 |
Rule Sentence · the workhorse
A material breach substantially deprives the non-breaching party of the benefit of the bargain and excuses that party's remaining performance; an unequivocal repudiation before performance is due is itself an immediate breach.
Sentence Anatomy · 5 roles, 5 colors
Every rule sentence breaks into five visual roles.
Actor 行為人the breaching or repudiating party違約或預期違約方
Act 行為failure to perform · unequivocal repudiation未履行或明確拒履行
Object 對象the contract's performance合約履行
Standard 法律標準material-breach test · clear, unequivocal repudiation重大性測試 / 明確不可變
Consequence 後果excuse + damages or immediate suit免除 + 損害或立即訴訟
Casebook Snapshot · a real American case
Hochster v. De La Tour
Holding. Where one party, before the time fixed for performance, unequivocally renounces the contract, the other party need not wait until the performance date to sue. The repudiation itself is an immediate breach that gives rise to an action at once.
Why it matters. Anticipatory repudiation collapses the timeline of breach. The injured party can act now — sue, mitigate, or arrange substitutes — instead of standing idle.
預期違約令受害方可立即起訴，不必等履行期。
Common Mistakes · what trips students
✗ 「違約」與「重大違約」是同義詞。
✓ Minor breach doesn't excuse other; material breach does.
小違約不免除；大違約免除。
✗ 「也許不會履行」就是 anticipatory repudiation。
✓ Repudiation must be clear and unequivocal.
須明確、不可變。
✗ 被 anticipatory repudiation 後只能等到期。
✓ Aggrieved party can sue immediately.
受害方可立即起訴。
✗ repudiating 後就再也不能反悔。
✓ Retraction is allowed before reliance change.
在受害方未基於 repudiation 採取重大行動前可 retract。
Mini IRAC · build the Application
Issue. Was D's refusal to begin work — communicated two months before performance was due — an immediate breach?
Rule. An anticipatory repudiation is a clear, unequivocal statement before performance is due that the party will not perform; it is itself an immediate breach.
Application (model). Two months before the scheduled start date, D wrote P, "I will not be performing under our contract — please make other arrangements." Because an anticipatory repudiation is a clear, unequivocal pre-performance refusal that is itself an immediate breach, the fact that D unequivocally informed P that no performance would be forthcoming means D's letter operated as a present, immediate breach.
Pick the right element for each blank:
g1.
g2.
g3.
Conclusion. Therefore, P may sue at once and need not wait until the original performance date.
MBE Check · multiple choice
Six weeks before D was to begin a year of consulting for P, D telephoned P and said, "I might have to back out — I'm not sure I can manage it." Is D's statement an anticipatory repudiation?
Mini Essay · write the Application paragraph
Facts. P, a wedding caterer, contracted with D to cater D's wedding on June 1 for $20,000. On April 1, D emailed: "I'm cancelling. I won't be needing your services and won't pay you. Please consider this final." P had already turned down two other June 1 jobs.
Call. May P sue D before June 1, and on what basis?
Practice Drill · tap to build the rule
Drop the chips here in correct order:
Tap chips to add → tap chips in the target to remove: