The standard for determining an anticipatory breach of contract is as follows: In order to constitute an anticipatory breach of contract, there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives. Doubtful and indefinite statements that the performance may or may not take place and statements that, under certain circumstances that in fact do not yet exist, the performance will not take place, will not be held to create an immediate right of action. A mere request for a change in the terms or a request for cancellation of the contract is not in itself enough to constitute a repudiation.
A contract provided that in the event of default, the defendant seller could retain the cash deposit and the note. Settlement was to take place within 30 days of written notice of substantial completion of the unit, and the plaintiff buyer could terminate the contract and secure refund of the deposit if the unit was not delivered by a date certain. Two months prior to the delivery date, the buyer claimed in a declaration that the seller had repudiated the contract by selling the unit to another buyer and filed for damages for anticipatory breach of a real estate contract. At the bench trial, the trial judge concluded that the buyer had unilaterally cancelled the contract and entered judgment for the seller and the agent. On appeal, the court affirmed the judgment for the agent but vacated as to the seller.
Could defendant seller be held liable for anticipatory breach?
The court held that the trial court had failed to reach the issue as to whether the seller, in the context of a non-breach by the buyer, was guilty of an anticipatory breach when the seller resold the property to a third person. The evidence was legally insufficient to permit a finding that there was a manifestation of the buyer's intention that the buyer would not render the promised performance when the contracted delivery date arrived.