The final question remains, after a repudiation before the time for performance, when may the injured party bring his action upon the contract? If a technical declaration were as much thought of to-day as it was once, the question could hardly have become troublesome. From a technical point of view, it seems obvious that in an action on a contract the plaintiff must state the defendant broke some promise which he had made. If he promised to employ the plaintiff upon June 1, the breach must be that he did not do that. A statement in May by the defendant that he is not going to employ the plaintiff upon June 1 can be a breach only of a contract not to make such statements. It is perhaps not wholly by chance that the doctrine of anticipatory breach has arisen as the exactness of common-law pleading has become largely a thing of the past; for the science of special pleading, in spite of the grave defects attending it, had the great merit of making clear the exact questions of law and fact to be decided.75
75 In Equitable Trust Co. v. Western Pacific R., 244 Fed. 486, 501 (aff'd. 250 Fed. 327, 162 C. C. A. 397, 246 U. S. 672, 62 L. Ed. 932, 38 S. Ct. Rep. 423), L. Hand, J., in effect accepted this conclusion, but held that there is in every contract an implied obligation not to repudiate. As to this suggestion, see infra, Sec. 1318.
The matter is so plain on principle that theoretical discussion is hardly possible,76 but certain distinctions may be made which have not always been observed, and which, if observed, are a sufficient answer to the claims of practical convenience that furnish the only support for the advocates of the doctrine of anticipatory breach. It seems desirable, also, to explain certain early cases which have led to some confusion, and thereby show the lack of historical basis for the doctrine; and of this first.
76It need hardly be said that the doctrine of anticipatory breach is peculiar to our law.