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John Desiderio John Desiderio

In the practice of real estate law today, very few legal issues are getting as much attention and at the same time being applied incorrectly by practitioners as anticipatory repudiation (or breach) of contract. To test this thesis, we ran a Westlaw search using the search term “anticipatory repudiation in the real property practice area,” and, since 2008, 30 decisions have been rendered compared with a total of 58 decisions from 1920–2007. This article attempts to deliver the rules of anticipatory repudiation and to discard the myths and mistruths.

This is tricky legal territory. Whether a party has anticipatorily breached the contract is not always easy to determine, and, in some cases, the tables may be turned with the court dismissing a party’s allegations of anticipatory breach by the other party to the contract, but finding instead that it was the party’s own conduct that constituted a prior anticipatory repudiation of the contract, thereby entitling judgment to be entered in favor of its adversary. The judgment in each case is more often based upon the specific facts of the matter and not solely upon the elements prescribed by law.

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