Sales and Leases | 159
(1951); Substantially Impairing the Value of the Whole Contract, The Perfect-Tender Rule v. Material Breach and Substantial Performance at Common Law, supra .]
Note : Substantial impairment is not often an issue in cases involving anticipatory repudiation in Article 2. Seldom will parties go to court over a repudiation of some minor, technical, or trivial aspect of performance. Example : A farmer contracted to buy 17 loads of cottonseed from a distributor. After accepting and paying for three shipments, the farmer repudiated the contract. Here, the loss of the farmer’s repudiated performance will substantially impair the contract’s value to the distributor. Though the repudiation was not total, the farmer repudiated 14 out of the total 17 shipments—the great bulk of the farmer’s contractual performance. [ See Cargill, Inc. v. Storms Agri Enterprises, Inc. , 878 S.W.2d 786 (Ark. App. Ct. 1994).]
3. Nonrepudiating Party’s Remedies for Anticipatory Repudiation Upon an anticipatory repudiation, the nonrepudiating party may:
await the repudiating party’s performance for a commercially reasonable time; invoke any remedy for breach, even if the nonrepudiating party has notified the repudiating party that the former would await the latter’s performance, and even if the nonrepudiating party has urged the repudiating party to retract the repudiation; or in either case, suspend performance or proceed under § 2-704 (dealing with the seller’s right to identify goods to the contract despite a breach or to salvage unfinished goods).
[U.C.C. § 2-601 (1951); Seller’s Right to Identify Conforming Goods, infra .]
a. Awaiting Repudiating Party’s Performance for a Commercially Reasonable Time If one party repudiates the contract, the nonrepudiating party may await the repudiating party’s performance for a commercially reasonable time. If the nonrepudiating party waits for more than a commercially reasonable time, then she will not lose her remedies. However, she will be unable to recover for avoidable damages resulting from the delay. [U.C.C. § 2-610, cmt. 1 (1951).] b. Invoking Remedies for Breach upon a Repudiation Upon a repudiation, the nonrepudiating party may generally invoke her remedies for breach at any time, unless (1) the repudiating party has effectively retracted the repudiation or (2) the nonrepudiating party has done something that, in good faith, requires notification to
Made with FlippingBook - Online Brochure Maker