ANTICIPATORY REPUDIATION OF CONTRACTS AND NECESSITY OF ELECTION

Where a breach of contract takes place several courses of conduct are normally open to the aggrieved promisee. He may bring an action for damages. He often may rescind for the breach. He sometimes may sue for specific performance.

He may accept later performance on account. He may try to persuade the defaulting party to live up to the contract. He may for the time being ignore both the contract and the breach. If he follows certain of these courses of conduct others may thereby become impossible.

He thus has an election of remedies, a choosing between inconsistent courses of action. An action for breach is inconsistent with rescission. Rescission is inconsistent with specific performance. Acceptance of performance on account is inconsistent with rescission, for the promisee is entitled to receive such performance only on the basis that the contract is still subsisting.

On the other hand, temporarily ignoring the breach, or mere unsuccessful negotiation looking toward performance are inconsistent neither with specific performance nor with action for breach. Where inconsistent remedies are available for breach the promisee has his election of remedies. By following one course which is inconsistent with another he thereby exercises his election between inconsistent remedies.