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Anticipatory Repudiation

Anticipatory Repudiation. Contracts – Prof Merges 4.21.2011. Hoechster v. De La Tour. John Ruskin, The Stones of Venice. Lord J. Campbell. Hoechster v. De La Tour. Facts Procedural History. Hoechster timeline. May, 22: π files suit. April, 1852: K made. May, 11: Δ reneges.

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Anticipatory Repudiation

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  1. Anticipatory Repudiation Contracts – Prof Merges 4.21.2011

  2. Hoechster v. De La Tour

  3. John Ruskin, The Stones of Venice

  4. Lord J. Campbell

  5. Hoechster v. De La Tour • Facts • Procedural History

  6. Hoechster timeline May, 22: π files suit April, 1852: K made May, 11: Δ reneges June 1: Δ’s trip to begin

  7. What is the issue in the case?

  8. What is the issue in the case? • “. . . So as to entitle A before the day to commence an action against B . . .”

  9. Holding?

  10. Holding? • π may sue before June 1 in this case

  11. Why is this helpful to Δ?

  12. Why is this helpful to Δ? • Permits π to find substitute employment – mitigation principle • Policy of Rockingham County

  13. What if Δ had said “I may not be going to Europe . . .”

  14. What if Δ had said “I may not be going to Europe . . .” • The current case “states a great deal more than a passing intention on the part of Δwhich he may repent of . . .”

  15. But wasn’t De La Tour’s performance a condition of Hoechster’s?

  16. But wasn’t De La Tour’s performance a condition of Hoechster’s? • Yes, but the condition was “dispensed with” (waived? Made irrelevant?) by the unequivocal breach.

  17. Kanavos v. Hancock Bank & Trust

  18. Kanavos v. Hancock Bank & Trust • Facts • Procedural History

  19. Right of 1st refusal • What does it mean? • How much is it worth to the bank to get rid of it? Why?

  20. What is the issue in the case?

  21. What is the issue in the case? • Must π Kanavos prove he was “ready, willing and able” to perform in order to recover? • Who has the burden of proof regarding ability of Kanavos to perform?

  22. What is the issue in the case? • Must π Kanavos prove he was “ready, willing and able” to perform in order to recover? • Who has the burden of proof regarding ability of Kanavos to perform?  The π, Kanavos

  23. McCloskey v. Minweld Steel

  24. McCloskey v. Minweld Steel • Facts • Procedural History

  25. “Let’s choose sides!” • ½ for π • ½ for Δ

  26. McCloskey timeline July 20: Δ writes letter May 1, 26: Reqts K made June 8: π asks about time July 24: Minweld response, asking for help

  27. McCloskey timeline May 1, 26: Reqts K made June 8: π asks about time

  28. 6/30 situation • What are McCloskey’s goals?

  29. McCloskey timeline July 20: Δ writes letter May 1, 26: Reqts K made June 8: π asks about time

  30. What was Minweld’s situation upon receipt of 7/20 letter?

  31. Art. V, p. 777 • Help for McCloskey?

  32. McCloskey timeline July 20: Δ writes letter May 1, 26: Reqts K made June 8: π asks about time July 24: Minweld response, asking for help

  33. What is the holding re: the 7/24 letter? • What risk did McCloskey take in dealing with it?

  34. P. 778-79 • “There is no indication in the letter that Minweld had definitely abandoned all hope of . . . receiving the steel . . .” • “Minweld’s letter was not a breach of the agreement . . .”

  35. Cosden Oil v. Karl O. Helm Akt.

  36. Cosden Oil v. Karl O. Helm Akt. • Facts • History

  37. Who breached this K?

  38. Who breached this K? • Cosden, as to all 4 orders • No excuse in Helm’s failure to pay for part of 1st order

  39. What is the damages issue?

  40. What is the damages issue? • When to measure buyer’s damages under the code . . .

  41. § 2-713. Buyer's Damages For Nondelivery Or Repudiation • (1) Subject to Section 2-723, if the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or justifiably revokes acceptance: • (a) the measure of damages in the case of wrongful failure to deliver by the seller or rightful rejection or justifiable revocation of acceptance by the buyer is the difference between the market price at the time for tender under the contract and the contract price together with any incidental or consequential damages under Section 2-715, but less expenses saved in consequence of the seller's breach; and

  42. (b) the measure of damages for repudiation by the seller is the difference between the market price at the expiration of a commercially reasonable time after the buyer learned of the repudiation, but no later than the time stated in paragraph (a), and the contract price together with any incidental or consequential damages provided in this Article (Section 2-715), less expenses saved in consequence of the seller's breach.

  43. What is proper date for determining the damages? • A commercially reasonable time after learning of the breach

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