2023 Wisconsin Statutes & Annotations
Chapter 402 - Uniform commercial code — sales.
402.610 - Anticipatory repudiation.

402.610 Anticipatory repudiation. When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may:

(1) For a commercially reasonable time await performance by the repudiating party; or

(2) Resort to any remedy for breach (ss. 402.703 or 402.711), even though the aggrieved party has notified the repudiating party that the aggrieved party would await the latter's performance and has urged retraction; and

(3) In either case suspend the aggrieved party's performance of the contract or proceed in accordance with s. 402.704 on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods.

History: 1991 a. 316.

A party doesn't repudiate by asking for a contract modification, but, if a seller informs a buyer that the seller simply won't be able to perform at the promised time, that may qualify as a repudiation. In this case, the parties' contracts included estimated fulfillment dates, not strict deadlines. But the seller was still required to perform within a reasonable time, and the estimated dates provided a benchmark for determining what an unreasonable delay would be. If the seller's new projected fulfillment date was outside the scope of what would be a reasonable time for performance, that would qualify as repudiation. What constitutes a reasonable time under the circumstances is a question of fact. Oregon Potato Co. v. Kerry Inc., 575 F. Supp. 3d 1064 (2021).