Not only, moreover, do logic and the defendant suffer, but the very practical convenience which is the excuse for their suffering is not attained. A few illustrations from recent cases will show that as at present applied the doctrine of anticipatory breach is so full of pitfalls for the unwary as to be objectionable rather than advantageous practically. In a leading English case it is stated: " It would seem on principle that the declaration of such intention [not to carry out the contract] is not in itself and unless acted on by the promisee a breach of contract. . . .
29 See infra, Sec. 1336.
30 Roehm v. Horet, 178 U. S. 1, 19, 44 L. Ed. 953, 20 Sup. Ct. 780.
31 The California Civil Code, Sec. 1440, provides: "If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party."
This necessarily implies that if the notice is retracted the obligation cannot be enforced without an offer to perform. Yet in California the doctrine of anticipatory breach, which in effect denies the right of retraction, is followed, and no reference is made to this section of the Code. The California cases are cited supra, Sec. 1314, n. 1.
The same provision is contained in the Montana Civil Code, Sec. 1956.
The North Dakota Civil Code also has copied in Sec.3774 this provision of the California Code, but the Supreme Court of North Dakota has denied the doctrine of anticipatory breach. Stanford v. McGill, 6 N. Dak. 536, 72 N. W. 938.
Such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect, it becomes a breach of contract, and he can recover upon it as such." 32 The conception that a breach of contract is caused by something which the promisee does is so foreign to the notions not only of lawyers but of business men that it cannot fail to make trouble.