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1. How do you obtain a statement of intent from a breaching party? And if these are hard to obtain, does that mean most people trying to sue end up relying on anticipatory repudiation? And how does the non-breaching party do these usually? Is it a conversation or a document asking the breaching party to admit whether they will materially breach or not? I guess I am confused as to how anticipatory repudiation looks like in real life. — If you are a client, your lawyer will advise you to send a letter (normally – in old days – return receipt requested), detailing grounds for insecurity and asking for assurances. In real life, people say, “Are you going to do what you promised?” Or “I’m insecure, can you convince me that you will perform?” Or, more often, a party says, “F U, I’m out of this contract. I don’t ever want to do anything with you ever again.” Or “You broke your promise. I’m not going to do what I promised”. This last one raises the question of who breached first. That person is the breaching party.
2. What is adequate assurance of due performance under RST 2nd section 251? Illustrations 7 and 8 are clear, but is the obligor’s word (over the phone) sufficient assurance that he will perform? — Like all determinations of whether facts are sufficient to support a legal conclusion, such as the finding of “adequacy,” the answer must be “it depends.” Given the situation, would a reasonable insecure party be assured?