Utah Anticipatory breach of contract
It is well settled that an action may be maintained for breach of contract based upon the anticipatory repudiation by one of the parties to the contract. Hurwitz *724 v. David K. Richards Co., 20 Utah 2d 232, 436 P.2d 794, 796 (1968). An anticipatory breach occurs when a party to an executory contract manifests a positive and unequivocal intent to not render its promised performance when the time fixed for it in the contract arrives. Id. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 723-24 (Utah App. 1990).
The modern rule, however, “is that an innocent party, confronted with an anticipatory repudiation, may continue to treat the contract as operable and urge performance by the repudiating party without waiving any right to sue for that repudiation.” United California Bank v. Prudential Ins. Co., Etc., 140 Ariz. 238, 681 P.2d 390, 433 (Ct.App.1983); see, e.g., Upland Indus. Corp. v. Pacific Gamble Robinson Co., 684 P.2d 638, 643 (Utah 1984); see also 4 Corbin § 981 at 938–39. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 725 (Utah App. 1990).
The Combes' argument that the nonbreaching party, in appropriate circumstances, ought to rescind without delay, in order to be able to mitigate damages, is admittedly persuasive. See University Club v. Invesco Holding Corp., 29 Utah 2d 1, 504 P.2d 29, 30 (1972) (“where one party definitely indicates that he cannot or will not perform a condition of a contract, the other is not required to uselessly abide time, but may act upon the breached condition. Indeed in appropriate circumstances he ought to do so to mitigate damages.”). Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 726 (Utah App. 1990).
An anticipatory breach occurs when a party to an executory contract manifests a positive and unequivocal intent not to render performance when the time fixed for performance is due. Hurwitz v. David K. Richards Co., 20 Utah 2d 232, 234–35, 436 P.2d 794, 796 (1968). The other party can immediately treat the anticipatory repudiation as a breach, or it can continue to treat the contract as operable and urge performance without waiving any right to sue for that repudiation. [United California Bank v. Prudential Ins. Co. of America, 140 Ariz. 238, 281, 681 P.2d 390, 433 (Ct.App.1983); see also University Club v. Invesco Holding Corp., 29 Utah 2d 1, 3, 504 P.2d 29, 30 (1972).Our court of appeals recently noted, “A party that has received a definite repudiation from the breaching party to the contract should not be penalized for its efforts to encourage the breaching party to perform its end of the bargain.” Breuer–Harrison, Inc. v. Combe, 799 P.2d 716, 725 (Utah Ct.App.1990) (citing United California Bank, 140 Ariz. at 281, 681 P.2d at 433); see also 4 Arthur L. Corbin, Corbin on Contracts § 981 (1951). Kasco Services Corp. v. Benson, 831 P.2d 86, 89 (Utah 1992).
