Comments on: Remedies for Breach of Season Ticket Contracts

By: Lawrence Cunningham

Lawrence Cunningham — Mon, 14 Sep 2009 14:32:21 +0000

Royce: Thanks for noting how some intricacies of anticipatory repudiation doctrine may not apply to many of these cases. I mentioned it to reference how that issue plays a role in some basic remedies contexts and to pick up any ticket cases where a holder renounces future performance or could raise an issue about whether the arrangement is a series of contracts or a single contract with installments. A separate post addressing those doctrinal matters, aside from the remedies questions, could be useful later.

The presence of a liquidated damages clause prescribing the contract price as the remedy may render standard doctrinal analysis less relevant. Yet the relatively simple fact context enables useful review of those tools and probing the alternatives is also useful to test the validity of the clauses. –Larry

By: Royce Barondes

Royce Barondes — Mon, 14 Sep 2009 12:28:18 +0000

I don’t understand the statement, “For future seasons’ tickets, current fan defaults amount to anticipatory repudiation of future performance.” “Such a repudiation, occurring BEFORE there has been any breach by nonperformance, is called an ‘anticipatory breach’ or, more precisely, an ‘anticipatory repudiation.’ ” Farnsworth, Contracts sec. 8.20 (3d ed) (emphasis added). What you are discussing appears to be a circumstance where there has been a breach, one that would, after the passing of time for cure, appear to be material and entitle the licensor to suspend performance and sue for total breach. It also does not appear that you are discussing a circumstance where there are multiple, separate contracts for futures years and it is argued that a failure to perform one contract acts as a repudiation of obligations under separate contracts that have not been breached. And it is not clear what words, if any, of repudiation were communicated by the fans.

Of course, as a general rule, an anticipatory repudiation by one may entitle the other party to suspend performance and sue for total breach. But I would think the more customary categorization is that an anticipatory repudiation by one may, subject to various exceptions not worth detailing here, entitle the other to treat the contract as if having been materially breached, not the other way around. To put it another way, even if Hochster were decided the other way, there would still be a current cause of action by the team, a promisee of a promise in breach.

Of course, as you suggest at the end of your post, discussing the typical default rules of remedies may be not all that relevant, as the express terms of the contract may significantly depart from those principles.

By: 1L

1L — Mon, 14 Sep 2009 00:40:54 +0000

Puts the first 3 weeks of Contracts I in compact context. Thanks.