WPI 302.04 Excuse of Performance—Anticipatory Breach

Use this instruction when it is claimed that a party's duty of performance was discharged or excused by the anticipatory breach or repudiation of the contract by the other party. Since either plaintiff or defendant may claim repudiation by the other, insert names of parties in blanks as appropriate.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

This instruction is based on various formulations in Washington case law. “One who is ready, willing and able to tender performance is relieved of that duty when the other party by word or act indicates that he will not perform.” Sherman v. Lunsford, 44 Wn.App. 858, 863, 723, P.2d 1176 (1986) (citing Kreger v. Hall, 70 Wn.2d 1002, 425 P.2d 638 (1967)). An “anticipatory breach occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time of performance. A party's intent not to perform may not be implied from doubtful and indefinite statements that performance may or may not take place.” Wallace Real Est. Inv., Inc. v. Groves, 124 Wn.2d 881, 898, 881 P.2d 1010 (1994); see also State v. Brown, 92 Wn.App. 586, 602, 965 P.2d 1102 (1998).

Anticipatory breach or repudiation requires a “positive statement or action by the promisor indicating distinctly and unequivocally that he either will not or cannot substantially perform any of his contractual obligations.” Groves, 124 Wn.2d at 898 (quoting Olsen Media v. Energy Scis., Inc., 32 Wn.App. 579, 585, 648 P.2d 493 (1982)); see also Wallace v. Kuehner, 111 Wn.App. at 817.

Anticipatory breach or repudiation may be asserted by a plaintiff to excuse or discharge the plaintiff's duty to perform a condition precedent. See, e.g., Artz v. O'Bannon, 17 Wn.App. 421, 562 P.2d 674 (1977). The applicable principles and burdens are well illustrated in Puget Sound Service Corp. v. Bush, 45 Wn.App. 312, 316, 724 P.2d 1127 (1986) (“Where a party's breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.”).

Withdrawal of repudiation. A party may withdraw a previously expressed repudiation of a contract, so long as the other party has not acted in reliance on it. Versuslaw, Inc. v. Stoel Rives, LLP, 127 Wn.App. 309, 111 P.3d 866 (2005) (trial court should have treated issue of repudiation as factual question for jury to decide).

Issue for jury. “Whether there is a repudiation of contract is a question for the fact finder.” Brothers v. Pub. Sch. Emp. of Wash., 88 Wn.App. 398, 408, 945 P.2d 208 (1997); see also Groves, 124 Wn.2d at 897 (question of fact).

For further discussion of the issues underlying this instruction, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 10:23 (3d ed.).