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Understanding Anticipatory Breach of Contract under The Contract Act, 1872

An overview of anticipatory breach of contract, its legal implications under Section 39 of The Contract Act, 1872, and relevant case law, prepared by Judge Nazmul Hasan for BJS preparation.

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BJS Preparation Series The Contract Act, 1872 Prepared and edited by- Judge Nazmul Hasan (11th Bangladesh Judicial Service, Prime Minister Gold Medalist) Anticipatory breach of contract: Anticipatory breach of contract takes place when any party of the contract shows his final decision not to perform his contractual obligations before the performance is due. For example- If A promises to marry B after his father’s death. But in the lifetime of his father, he marries with C. It is anticipatory breach of contract as A cannot marry with others so he has breached the contract before the intended time. If B chooses, she can claim for compensation.  Section 39 of the Contract Act, 1872 deals with anticipatory breach of contract and provides as follows: “Effect of refusal of party to perform promise wholly 39. When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. Illustrations (a) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theater two nights in every week during the next two months, and B engages to pay her 100 Taka for each nights performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract. (b) A, a singer, enters into a contract with B, the manager of a theatre, to sing at his theatre two nights in every week during the next two months, and B engages to pay her at the rate of 100 Taka for each night. On the sixth night A wilfully absents herself. With the assent of B, A sings on the seventh night. B has signified his acquiescence in the continuance of the contract, and cannot now put an end to it, but is entitled to compensation for the damage sustained by him through A's failure to sing on the sixth night.”
BJS Preparation Series The Contract Act, 1872 Prepared and edited by- Judge Nazmul Hasan (11th Bangladesh Judicial Service, Prime Minister Gold Medalist)  Anticipatory breach of contract does not discharge the contract but it may be if the aggrieved party so chooses. Case Law: In Frost v Knight (1872) LR 7 Ex 111 -A promised to marry B upon the death of his father. During the father’s lifetime, A absolutely refused to marry B. Although the time for performance has not arrived, B was held entitled to sue for breach of promise.