Conn. Civ. Jury Instr. 4.2-25

The defendant claims that the plaintiff committed an anticipatory breach of the contract. An

anticipatory breach of contract occurs when one party to a contract indicates that (he/she/it) will

not perform (his/her/its) obligations under the contract before the time for performance has

arrived. This indication can occur either by a statement that the party will not perform or by an

act that indicates an unwillingness to perform.

If you find that the plaintiff did anticipatorily breach the contract by <describe>, then the

defendant had no obligation to perform (his/her/its) duties under the contract.

However, this is only a valid defense to the plaintiff's claim if you find that the defendant, as of

the time of the plaintiff's repudiation, had fulfilled his duties under the contract.

Authority and Notes

Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn. App. 460,

465, cert. denied, 223 Conn. 926 (1992). The so-called nonbreaching party's ability to recover

for anticipatory breach is limited by his ability to perform under the contract. "ln order to

establish that the defendants anticipatorily breached the contract, the plaintiff must be able to

show that it would have been able to perform its obligations on the date set for performance."

Land Group, Inc. v. Palmieri, 123 Conn. App. 84, 93 (2010). The Restatement (Second) of

Contracts § 254 (1) states that "[a] party's duty to pay damages for total breach by repudiation is

discharged if it appears after the breach that there would have been a total failure by the injured

party to perform his return promise." 2 Restatement (Second), Contracts § 254, p. 290 (1981).

"Repudiation can occur either by a statement that the promisor will not perform or by a

voluntary, affirmative act that indicates inability, or apparent inability, substantially to perform."

Gilman v. Pedersen, 182 Conn. 582, 584 (1981).