In many of the cases discussing the doctrine of anticipatory breach, there had been already an actual breach of contract, but the time for the full completion of the defendant's performance had not yet arrived.96 The inquiry suggests itself, are the rights of the parties different in any respect in such a case from one where the repudiation is wholly anticipatory? Of course, in a jurisdiction which denies altogether the doctrine of anticipatory breach, the distinction is vital. In a jurisdiction which accepts the doctrine there should be, it seems, no distinction between the two cases. But under the doctrine of anticipatory breach as stated by the English courts, and often repeated by American courts, a difference seems to exist. Where there has already been an actual breach of contract no election on the part of the plaintiff need be manifested. The breach, being a normal breach of contract, exists as soon as the defendant breaks his promise, irrespective of action by the plaintiff and will remain an enforceable breach until the Statute of Limitations has run. The plaintiff, it is true, may elect to continue the contract in spite of the breach, but this will require affirmative action on his part.97 In the case of an anticipatory repudiation, however, as has been seen, some manifestation of election to treat the repudiation as a breach is requisite.
93 Ray burn v. Comstock, 80 Mich. 448, 45 N. W. 378; Traver v. Halsted, 23 Wend. 66; Ault v. Dustin, 100 Tenn. 366, 45 S. W. 981; J. P. Gentry Co. v. Margolius, 110 Tenn. 669, 75 S. W. 959; Nilson v. Morse, 52 Wis. 240, 9 N. W. 1. See also Perkins v. Frazer, 107 La. 390, 31 So. 773.
94 It was so stated in Zuck v. Mo-Chire, 98 Pa. 541.
96 See supra, Sec. 1317.
97 See supra, Sec. 686.