It has been shown76 that the treatment of anticipatory repudiation as a breach was probably due to a recognition of the necessity of giving the injured party a defence, coupled with the assumption that unless there was a breach there could be no defence. The same confusion tends to induce the supposition that if an anticipatory repudiation is not sufficiently absolute or positive to amount to a breach, it cannot operate as a defence to the other party for not performing. But surely if one who has agreed to buy on credit says to the seller, "I don't think I shall pay for those goods," he cannot sustain an action for refusal to deliver the goods. Any breach seriously threatened without excuse should be a sufficient defence whether there is positive repudiation or not and whether the doctrine of anticipatory breach is accepted or not.77 On the other hand, it is clear that the law neither does nor ought to allow an immediate action for a repudiation which is not positive or at least where there is not a pretty clear inability to perform.
71 Porte v. Supreme Council American Legion of Honor, 183 Maes. 326, 67 N. E. 238.
72 Parker v. Pettit, 43 N. J. L. 512, 617.
73 O'Neill v Supreme Council of American Legion of Honor, 70 N. J. L. 410, 57 Atl. 463. To similar effect is Mutual etc. Assoc, v. Taylor, 99 Va. 208, 37 S. E. 854.
74 Langan v. Supreme Council American Legion of Honor, 174 N. Y. 266, 66 N. E. 932. See also Kelly v. Security Mut. L. Ins. Co., 186 N. Y. 16, 78 N. E. 584.
75 Fischer v. Hope Ins. Co., 69 N. Y. 161. See also Lovell v. St. Louis L. Ins. Co., Ill U. S. 264, 28 L. Ed. 423, 4 Sup. Ct. 390.
76 Supra, Sec.Sec. 1313, 1315.