Anticipatory breach.

Practice point: By definition an anticipatory breach cannot be committed by a party already in material breach of an executory contract. It is well settled that an anticipatory breach of a contract is one that occurs before performance by the breaching party is due.

Student note: The rationale behind the doctrine is that it gives the non-repudiating party an opportunity to treat a repudiation as an anticipatory breach without having to futilely tender performance or wait for the other party's time for performance to arrive.

Case: Kaplan v. Madison Park Group Owners, LLC, NY Slip Op 03086 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Appeals from final and non-final judgments.