2 Discharge by Breach: Actual and Anticipatory

1. Actual breach: the performance-time's failure (the refusal-or-inability at the due time: the non-delivery, the non-payment, the defective performance beyond the substantial line); the breach's immediate consequence: the discharge of the injured party's own counter-obligations + the remedies' accrual (damages, rescission — Unit 8); 2. Anticipatory breach: the repudiation before the performance-time (the express refusal "I will not deliver"; the disabling conduct — the goods sold elsewhere, the factory dismantled); the innocent party's options: (i) sue immediately (the breach's acceptance-and-action — the Hochster line by name only); (ii) wait for the due date (the contract subsisting till then — the risk-of-changed-circumstances problem: if the contract would have been frustrated by the due date, the damages may fail — the Avery v. Bowden classic by name only); the Nepali practice's recognition (the Code's-and-courts' anticipatory-breach treatment in the construction-and-supply cases); 3. The breach's discharge-function clarified: the breach discharges the injured party (his obligations end or become election-dependent); the breaching party remains liable — the discharge here is the exit-right, not the obligation's forgiveness.