Anticipatory repudiation

“The doctrine of anticipatory repudiation is part of the law of contracts in Florida.” Southern Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771, 773 (Fla. 1st DCA 1983). Repudiation by one party, to be sufficient in any case to entitle the other to treat the contract as absolutely and finally broken and to recover damages as upon total breach, must at least amount to an unqualified refusal, or declaration of inability, substantially to perform according to the terms of his obligation. Roehm v. Horst, 178 U.S. 1, 14, 15, 20 S.Ct. 780, 44 L.Ed. 953; Smoot's Case, 15 Wall. 36, 49, 21 L.Ed. 107; Dingley v. Oler, 117 U.S. 490, 503, 6 S.Ct. 850, 29 L.Ed. 984; ''Kimel v. Missouri State Life Ins. Co.'' (C.C.A.) 71 F.(2d) 921, 923. Mere refusal, upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause, to pay a monthly benefit when due is sufficient to constitute a breach of that provision, but it does not amount to a renunciation or repudiation of the policy. ''Mobley v. New York Life Ins. Co.'', 295 U.S. 632, 638 (1935).

(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach. (2) Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance. Therefore, the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party. Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So. 2d 705, 708 (Fla. 4th DCA 1985).

It is "arguable that anticipatory repudiation is an affirmative defense required to be raised by the defendant's pleadings." Twenty-Four Collection, Inc. v. M. Weinbaum Const., Inc., 427 So. 2d 1110, 1112 (Fla. 3d DCA 1983). An anticipatory repudiation also creates a cause of action for breach of contract distinct from any defense. Id.