metaphors and anticipatory breach of contract

Editorial Committee of the Cambridge Law Journal

Metaphors and Anticipatory Breach of ContractAuthor(s): Francis DawsonSource: The Cambridge Law Journal, Vol. 40, No. 1 (Apr., 1981), pp. 83-107Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506326 .

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86 The Cambridge Law Journal [1981]

precluded from claiming damages for loss of bargain?13 Is a party who has affirmed a contract entitled to seek a decree of specific

performance prior to the date set for performance?14

Looking at the many cases in which these problems have arisen, one cannot help but be struck by the constant use of metaphors to

explain the consequences of discharge for breach. The reports are

full of blowings hot and cold, of breaches going to the root of the

contract, of unaccepted renunciations being things writ in water and

of parties bringing contracts to an end. The power of metaphors in this area stems from the fact that they convey the complicated ideas underlying discharge for breach in a format which is

immediately comprehensible. They provide quick, clean and sharp

images. Yet metaphors have their limitations, for they all too soon

acquire an existence and validity of their own. We forget that they are intellectual short-cuts,

" the graphic phrase... (that) can give

force to a legal principle "15 and begin to believe that the solution

to a given problem is to be found in a metaphor. How many times a day is it said that an innocent party has a right to bring a

contract to an end? Yet who really knows what this formula

means? Certainly the reports can be read for many hours without

one being any the wiser as to precisely what promise it is that is

supposed to have been broken when one party terminates the

contract and brings an action for wrongful repudiation. This article is an attempt to examine afresh the ideas that lie

beneath the action for wrongful repudiation. The argument that the

difficulties in this area are the inevitable result of a development which was in itself illogical and unjust is familiar. That is hardly

satisfactory at the present day. The doctrine is now over a hundred

years old and even its sternest critics must allow that there are

practical advantages in permitting the injured party to commence an

action prior to the date for performance. The purpose of this

article is more limited. It is to suggest that the key to unravelling many of the difficulties in this area lies in recognizing the extent

to which we use metaphors to explain the consequences of discharge for breach, and the dangers inherent in such use. The article will

ii Horsler v. Zorro [1975] Ch. 302; Hayes v. Ross (No. 3) [1919] N.Z.L.R. 786; Slowey v. Lodder (1901) 20 N.Z.L.R. 321; [1904] A.C. 442; Goodman v. Pocock (1850) 15 Q.B. 576; De Bernardy v. Harding (1853) 8 Ex. 822. See generally Williston, "Repudiation of Contracts" (1901) 14 Harv.L.R.Rev. 317, 318 et seq.\ Dawson (1976) 39 M.L.R. 214; Albery (1975) 91 L.Q.R. 337. Cf., Johnson v. Agnew [1980] A.C. 367; White v. Ross [1960] N.Z.L.R. 247; Hunt v. //yrfe [1976] 2 N.Z.L.R. 453.

i* Turner v. fl/fl</w (1950-51) 82 C.L.R. 463; Kloepfer Wholesale Hardware & Automotive Co. v. Roy [1952] 3 D.L.R. 705; Hasham v. Zenab [1960] A.C. 316; cf., Mohr v. Smith [1914] S.A.L.R. 92.

15 White and Carter (Councils) Ltd. v. McGregor [1962] A.C. 413, 438, per Lord Keith of Avonholm.

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