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the repudiating party before the nonbreaching party pursues any remedy. Further, as mentioned, the general rule is that one party must tender performance before she may invoke her remedies for breach. If there is an anticipatory repudiation, though, the nonrepudiating party need not tender performance before utilizing these remedies. However, some courts hold that, to invoke remedies for breach, the nonrepudiating party must demonstrate ability to perform. [U.C.C. § 2-610(b) (1951); 2 Hawkland UCC Series § 2-610:2, Westlaw (database updated June 2021).]
c. Suspending Performance or Cancelling the Contract upon an Anticipatory Repudiation
Regardless of whether the nonrepudiating party elects to await performance or to invoke her remedies for breach, she may suspend her own performance. Distinctly, albeit relatedly, the nonrepudiating party may cancel the contract outright, unless the repudiating party has effectively retracted the repudiation. [ See U.C.C. §§ 2-610(c), 2-611(1) (1951).]
Retracting an Anticipatory Repudiation
Within specified constraints, a repudiating party may cut off the nonrepudiating party’s remedies by effectively retracting the repudiation. [ See U.C.C. § 2-611 (1951).]
1. Retraction Defined Article 2 does not specify any particular method for retraction. Indeed, the repudiating party may retract the repudiation utilizing any method that clearly indicates, to the nonrepudiating party, that the repudiating party intends to perform the contract. Thus, to be a retraction, a communication should directly address the repudiation and indicate that the repudiating party has changed her intention in that regard. By contrast, a communication is not a retraction if it merely ignores the repudiation or makes equivocal or tentative statements concerning intent to perform. However, the retraction must include any adequate assurances of performance that the nonrepudiating party has justifiably demanded. Finally, a retraction can consist of words or conduct manifesting intent to perform. [U.C.C. § 2-611(2) (1951); Aero Consulting Corp. v. Cessna Aircraft Co. , 867 F.Supp. 1480 (D. Kan. 1994); Restatement (Second) of Contracts § 256, cmt. b; Right to Adequate Assurance of Performance, infra .] Examples : (1) An oil producer entered a long-term petroleum supply contract with a distributor. The distributor performed for a time. However, the distributor repudiated the contract once its crippling overexposure in the petroleum futures market nearly caused its collapse and necessitated an intervention and bailout by its shareholders and creditors. Yet within the time frame for an effective retraction, the distributor sent a letter to its customers. In the letter, the
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