Claiming Damages upon an Anticipatory Breach: Why should an Acceptance Be Necessary?

Abstract

This article is an attempt to defend the English rule that an anticipatory breach does not automatically give rise to a right of action for damages unless and until it is ‘accepted’. The article first explores the major arguments for and against the rule and finds that the rule is justifiable on the ground of finality and consistency and that none of its objections are persuasive enough to overturn the rule. The article further observes that the rule must be qualified in two important respects in order to retain its rational force. However, the above rule is currently stated by the courts to the effect that an anticipatory breach is not per se a breach and is only ‘converted’ into a breach when it is ‘accepted’. It is proposed that this statement is historically unwarranted and contradicts sound logic and should thus be discarded.

Keywords: Anticipatory Breach, Acceptance, the Breach-Conversion Rule, Conditional Damages Claim Proposition