ANTICIPATORY BREACH REVISITED: FROM PREMATURE BREACH TO CERTAIN FUTURE NON-PERFORMANCE

Abstract

The existence of the obligation and its temporal effect, as breach, from a logical standpoint, can only materialize upon the maturity of the time for performance, not merely upon the formation of the obligation. Accordingly, what is termed “anticipatory breach” does not constitute an accurate characterization, as it presupposes the occurrence of a breach prior to its due time. The more precise description of the situation is that of a certain future breach, evidenced by serious indications emanating from the debtor that render non-performance highly probable.

On this basis, granting the creditor the right of termination, or other protective remedies, prior to the maturity of the obligation may be justified on the ground of the existence of a serious cause establishing the likelihood of non-performance, without the need to assume the existence of a present breach. This approach renders the theoretical framework more consistent with the logic of obligations in civil law.