Black-letter propositions
- 01
Anticipatory repudiation requires an unequivocal indication of nonperformance while material duties remain; the aggrieved party may await or treat it as breach.
- 02
Repudiation may be retracted before cancellation, material change, or indication that it is final.
- 03
Under the UCC, reasonable insecurity permits written demand for adequate assurance and suspension; failure to assure within a reasonable time, up to 30 days, is repudiation.
- 04
Impossibility or impracticability requires an unforeseen event, no fault, and a basic assumption, without allocated risk.
- 05
Frustration requires substantial destruction of the party's principal known purpose even though performance remains possible.
Use this attack sequence under time
Frame the issue
State the promised future performance and timing.
Resolve the next checkpoint
Distinguish unequivocal repudiation from insecurity.
Resolve the next checkpoint
Track assurance and retraction.
Resolve the next checkpoint
For excuse, identify event, basic assumption, fault, risk allocation, and effect.
Finish the conclusion
Consider partial or temporary excuse and restitution.
Common wrong turns
- Increased expense alone rarely proves impracticability.
- A party cannot claim frustration when its purpose was not mutually understood.
- Repudiation does not apply when the only remaining duty is payment for completed performance.
Worked example
A venue burns down before a one-night concert for which that specific hall was an assumed essential subject.
Destruction without fault may make performance impossible or impracticable because the specific venue's continued existence was a basic assumption. Allocation of casualty risk and available substitutes remain important.
Practice this topic
Repudiation and assurance
UCC 2-609(1) says each party's obligation includes that the other's expectation of due performance will not be impaired, and when reasonable grounds for insecurity arise the other may demand adequate assurance in writing and, until receiving it, may if commercially reasonable suspend performance. Between merchants, reasonableness is determined by commercial standards. Failure to provide adequate assurance within a reasonable time not exceeding 30 days after a justified demand is a repudiation.
UCC 2-610 says when either party repudiates a performance not yet due, the loss of which will substantially impair the value of the contract, the aggrieved party may for a commercially reasonable time await performance or resort to any remedy for breach, and in either case may suspend its own performance.
Excuse
UCC 2-615(a) says delay or non-delivery by a seller who complies with the notice and allocation duties is not a breach if performance as agreed has been made impracticable by a contingency whose non-occurrence was a basic assumption of the contract or by good-faith compliance with a governmental regulation or order. Cornell describes impossibility as an excuse when an unforeseen event after formation makes performance impossible, and frustration of purpose as an excuse when an unforeseeable event destroys the agreement's principal purpose.
Cornell notes courts read frustration narrowly and that UCC 2-615 states a related impracticability doctrine for sales of goods.
Frequently asked questions
What is the controlling rule for anticipatory repudiation, assurance, impracticability, and frustration?+
Future duties may be discharged by unequivocal repudiation or narrowly excused when an unallocated, unforeseen event destroys a basic assumption or the known principal purpose.
How should I analyze anticipatory repudiation, assurance, impracticability, and frustration on the bar exam?+
State the promised future performance and timing. Distinguish unequivocal repudiation from insecurity. Track assurance and retraction. Consider partial or temporary excuse and restitution.
What can a party demand under UCC 2-609?+
Adequate assurance of due performance, in writing, when reasonable grounds for insecurity arise, and it may suspend its own performance if commercially reasonable until it receives it.
How long does the other party have to give assurance?+
A reasonable time not exceeding 30 days after a justified demand, and failure to do so is a repudiation, under UCC 2-609(4).
What are the aggrieved party's options after repudiation?+
Await performance for a commercially reasonable time or resort to any remedy for breach, and suspend its own performance, under UCC 2-610.
What is impracticability under UCC 2-615?+
Performance made impracticable by a contingency whose non-occurrence was a basic assumption of the contract, or by good-faith compliance with a governmental regulation or order.
How does frustration of purpose differ from impossibility?+
Frustration excuses performance when an unforeseeable event destroys the agreement's principal purpose, while impossibility applies when performance itself is impossible, per Cornell.