PJC Business

PJC 101.19

C ONTRACTS

PJC 101.19 Defenses—Instruction on Anticipatory Repudiation Failure to comply by Don Davis is excused by Paul Payne ’s prior repudia tion of the same agreement. A party repudiates an agreement when he indicates, by his words or actions, that he is not going to perform his obligations under the agreement in the future, showing a fixed intention to abandon, renounce, and refuse to perform the agreement. The repudiation must be absolute and unconditional. COMMENT When to use. PJC 101.19 submits the doctrine of anticipatory repudiation as a defensive measure. It may also be appropriate, in slightly different form, as an element of the plaintiff’s cause of action. Anticipatory repudiation gives the nonrepudiating party the option of treating the repudiation as a breach or ignoring the repudiation and awaiting the agreed time for performance. Ingersoll-Rand Co. v. Valero Energy Corp. , 997 S.W.2d 203, 211 (Tex. 1999); Pagosa Oil & Gas, L.L.C. v. Marrs & Smith Part nership , 323 S.W.3d 203, 216 (Tex. App.—El Paso 2010, pet. denied). Source of instruction. The elements in the instruction are adapted from the dis cussion of the doctrine in Universal Life & Accident Insurance Co. v. Sanders , 102 S.W.2d 405, 406–07 (Tex. 1937); Moore v. Jenkins , 211 S.W. 975, 976 (Tex. 1919); Pollack v. Pollack , 39 S.W.2d 853, 856–57 (Tex. Comm’n App. 1931, holding approved); and Group Life & Health Insurance Co. v. Turner , 620 S.W.2d 670, 672–73 (Tex. App.—Dallas 1981, no writ). “Without just excuse.” To excuse a failure to comply, the repudiation must have been “without just excuse.” Group Life & Health Insurance Co. , 620 S.W.2d at 673 (quoting Sanders , 102 S.W.2d at 406); Parkway Dental Associates, P.A. v Ho & Huang Properties, L.P. , 391 S.W.3d 596, 606 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see Pollack , 39 S.W.2d at 855. UCC cases. In cases involving the sale of goods, the instruction defining anticipa tory repudiation may need to be revised. See Tex. Bus. & Com. Code §2.610 (Tex. UCC).

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