6. Discharge by Breach of Contract — Anticipatory Breach and Actual Breach
Breach is the mode of discharge every student recognises by instinct — someone doesn't do what they promised. But the law splits breach into two distinct kinds, based on timing, and gives the injured party real choices about what to do next.
The Problem This Topic Solves
Most students assume breach only happens on or after the due date of performance. But what if a party announces, well before the due date, that they simply will not perform? Is the other side stuck waiting until the due date to do anything about it, or can they act immediately? This post covers that exact question — and draws the line between what this unit covers (when and how a breach discharges the contract) and what Unit 4 covers (how damages for that breach are actually calculated).
What Is "Breach of Contract"?
A breach occurs when a party, without lawful excuse, fails or refuses to perform an obligation under the contract, or performs it defectively. A breach does not automatically end the contract by itself — instead, it gives the injured party the option to treat the contract as discharged and claim a remedy, or to continue holding the other party to it.
Actual Breach
Actual breach happens either at the time performance is due (the party simply does not perform on time) or during performance itself (the party performs, but defectively or incompletely, falling short of what was promised).
Anticipatory Breach — Repudiation Before the Due Date
Anticipatory breach happens when a party, before the time fixed for performance arrives, either expressly refuses to perform, or by their own conduct makes it clear that they will not perform when the time comes (for instance, by disabling themselves from being able to perform at all).
The Injured Party's Choice — Hochster v. De La Tour (1853)
Hochster v. De La Tour (1853) 2 E&B 678 — An employer engaged a courier for a European trip starting in June, but in May, before the trip began, told the courier his services would not be needed after all. The courier sued for breach of contract immediately, without waiting for June. The court held this was valid — once a party clearly repudiates a contract before performance is due, the injured party need not wait for the due date to arrive before suing; they may treat the contract as discharged and claim damages right away.
This case establishes the injured party's real choice on an anticipatory breach: they may either (a) accept the repudiation immediately, treat the contract as discharged at once, and sue for damages without delay, or (b) refuse to accept the repudiation, keep the contract alive, and wait for the actual date of performance to arrive.
The Risk of Keeping the Contract Alive — Frost v. Knight (1872)
Frost v. Knight (1872) LR 7 Ex 111 — This case confirmed the injured party's choice from Hochster, but also highlighted its risk: if the injured party chooses to keep the contract alive and wait, they take on the risk that some other, later, lawful excuse for non-performance might arise before the due date — for example, a supervening event that would independently frustrate the contract. If that happens, the injured party may lose the right to sue for the original anticipatory breach altogether.
Breach Gives an Option, Not an Automatic End
This is the key conceptual difference between breach and frustration. Frustration (Section 56) makes a contract void automatically, by operation of law, the moment the impossibility arises — neither party has a choice about it. Breach, by contrast, only gives the injured party an option to treat the contract as discharged. If the injured party instead affirms the contract (for instance, by continuing to demand performance), the contract remains alive and enforceable.
Comparing Actual and Anticipatory Breach
| Basis | Actual Breach | Anticipatory Breach |
|---|---|---|
| When it occurs | On or after the due date of performance | Before the due date of performance |
| Injured party's options | Treat as discharged and claim a remedy | Sue immediately (Hochster), or wait for the due date |
| Main risk | None specific to timing | Waiting risks losing the claim to an intervening lawful excuse (Frost v. Knight) |
| Leading case | — | Hochster v. De La Tour (1853); Frost v. Knight (1872) |
- Actual breach = non-performance or defective performance on or after the due date
- Anticipatory breach = a clear refusal or disabling act before the due date
- Hochster v. De La Tour — the injured party may sue immediately on an anticipatory breach, without waiting for the due date
- Breach gives the injured party an option to treat the contract as discharged; it is not automatic like frustration
- Frost v. Knight — waiting instead of accepting the repudiation carries the risk of losing the claim if an independent excuse (like frustration) arises before the due date
- How damages are actually calculated for a breach — including the kinds of damages and the duty to mitigate loss — is covered in Unit 4 ("Quasi-Contracts and Remedies for Breach"), not repeated here
A Practical Example
A construction firm is contracted to complete a shop's interior fit-out by the 60th day. On the 10th day, the firm's owner tells the shop owner plainly that they have taken on too much work and "will not be able to do this job at all." This is an anticipatory breach. The shop owner can, following Hochster v. De La Tour, immediately treat the contract as discharged and start arranging another contractor, without waiting until day 60 to see if the firm shows up — or the shop owner may choose to wait, though Frost v. Knight warns that doing so carries some risk if circumstances change before day 60.
Quick Revision Points
- Breach = failure/refusal to perform, or defective performance, without lawful excuse
- Actual breach: at or after the due date. Anticipatory breach: before the due date
- Hochster v. De La Tour (1853): injured party can sue immediately on anticipatory breach
- Frost v. Knight (1872): waiting instead carries the risk of an intervening excuse defeating the claim
- Breach only gives an option to treat the contract as discharged — unlike frustration, it is not automatic
- Damage quantification for breach is Unit 4 territory, not this post
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