ABSTRACT
The earlier authorities, when faced with a wrongful neglect or refusal, were concerned to absolve the ‘innocent party’ from the need to render useless performance, which the repudiating buyer had indicated he no longer wanted. In Jones v Barkley (1781) 2 Doug KB 684, one finds the seeds of the later doctrine of accepted anticipatory breach. Lord Mansfield CJ said: ‘One need only state what the agreement, tender and discharge were, as set forth in the declaration. It charges that the plaintiffs offered to assign, and to execute and deliver a general release, and tendered a draft of an assignment and release, and offered to execute and deliver such assignment, but the defendant absolutely discharged them from executing the same, or any assignment and release whatsoever. The defendant pleads, that the plaintiff did not actually execute an assignment and release; and the question is, whether there was a sufficient performance. Take it on the reason of the thing. The party must shew he was ready; but, if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther, and do a nugatory act.’
