The following Commercial practice note provides comprehensive and up to date legal information covering:

  • Repudiation
  • Characteristics of a repudiatory breach
  • Breach of a condition
  • Serious breach of an intermediate term
  • Anticipatory breach
  • Options for the innocent party upon a repudiatory breach by the defaulting party
  • Affirmation of the contract following a repudiatory breach
  • Acceptance of the repudiatory breach
  • Unequivocal acceptance
  • The risk of acceptance of a repudiatory breach
  • More...


This Practice Note concerns repudiation and sets out what a repudiatory breach of contract means. It explains how a repudiatory breach goes to the core of the contract and the options or remedies available to an innocent party as a result of the other party’s repudiation, which include either accepting the repudiatory breach and treating the contract as ended, or affirming the contract. This Practice Note explains the meaning of an anticipatory breach of contract and considers when that may also be a repudiatory breach. It also considers loss of bargain damages which an innocent party may seek to recover following a repudiatory breach.

Termination for repudiatory breach is a common law right and a complex area of law, well documented with cases. If a party is seeking to terminate a contract for another party’s repudiatory breach; the advice is to proceed with caution. It is not a risk-free strategy for termination, and each case should be evaluated on its own facts.

Where a party purports to terminate a contract for the repudiatory breach of another party and the circumstances turn out not to amount to a repudiation, the act of termination could mean that the terminating party itself is in repudiatory breach of contract. Having taken action to terminate based on the defaulting party’s non-performance, the 'innocent' terminating party could inadvertently find itself in repudiatory

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