Anticipatory Breach: An International Comparison of an Innocent Party's Right to Terminate

Abstract

As Lord Mustill observed in relation to anticipatory breach, ‘the common law has never succeeded in finding a solution which is both theoretically sound and capable of producing sensible results in practice’. This has certainly been the case with the courts’ responses to anticipatory breach not only in Australia but also in the United Kingdom, United States and Singapore. The common law origins of the doctrine have inevitably created a sometimes convoluted and often contradictory set of legal principles in relation to the executed contracts exception, mitigation of loss and the ‘ready, willing and able’ principle. International instruments have attempted to provide clarity to this complex area of law but their effectiveness is limited by the refusal of countries such as the United Kingdom to ratify the Convention and the reluctance of contract drafters to rely on international law. The doctrine of anticipatory breach ultimately requires revision and clarification by the courts in order to provide increased certainty to this presently highly uncertain area of law.