Hochster v De La Tour [1853] EWHC QB J72 (25 June 1853)

A courier was hired for a trip starting on 1 June. Before this date, the employer cancelled the contract. The courier sued immediately. The court held he was entitled to do so, establishing the doctrine of anticipatory breach.

Facts

In April 1852, the claimant, Hochster, a courier, entered into a contract with the defendant, De La Tour, to accompany him on a three-month tour of Europe. The employment was to commence on 1 June 1852. However, on 11 May 1852, the defendant wrote to the claimant stating that he had changed his mind and would no longer require the claimant’s services. On 22 May 1852, before the date of performance was due, the claimant commenced an action for breach of contract. The defendant argued that no action could be brought until after 1 June 1852, as no breach could occur before the performance date had passed.

Issues

The central legal issue was whether a party to an agreement can sue for breach of contract before the time for performance has arrived, based upon the other party’s express renunciation of their obligations. Can an action for breach of contract lie immediately upon a party’s repudiation of the contract, or must the innocent party wait until the specified performance date?

Judgment

The Court of Queen’s Bench, in a judgment delivered by Lord Campbell C.J., found in favour of the claimant. The court held that where one party communicates their intention not to perform the contract, the innocent party does not have to wait until the breach has actually occurred to bring an action.

Reasoning of the Court

Lord Campbell reasoned that it would be both irrational and unfair to require the innocent party (the claimant) to remain idle and ready to perform until the contractual start date, thereby preventing him from seeking alternative employment and mitigating his loss. The defendant’s renunciation of the contract was, in itself, a breach that gave the claimant the right to sue immediately for damages. Lord Campbell stated:

But it is surely much more rational, and more for the benefit of both parties, that, after the renunciation of the agreement by the defendant, the plaintiff should be at liberty to consider himself absolved from any future performance of it, retaining his right to sue for any damage he has suffered from the breach of it.

He further highlighted the unjust position the claimant would be in if the defendant’s argument were to succeed:

If the plaintiff has no remedy for breach of the contract unless he treats the contract as in force, and acts upon it down to the 1st June 1852, it follows that, till then, he must enter into no employment which will interfere with his promise to start with the defendant on such travels on the day and year, and that he must then be ready and willing to start with the defendant on the tour; but that he is then in fact prevented from doing so by the defendant’s refusal.

The court concluded that the defendant, having wrongfully renounced the contract, could not complain about being sued immediately for the injury he had caused. The claimant was therefore entitled to bring his action before 1 June.

Implications

This case is the foundational authority for the doctrine of ‘anticipatory breach’ in English contract law. It establishes that if one party to an executory contract unequivocally declares that they will not perform their side of the bargain, the innocent party has an immediate right of ‘election’. The innocent party can either:

1. Accept the repudiation, treat the contract as terminated, and sue immediately for damages for the breach.
2. Affirm the contract, wait until the contractual date for performance, and sue for breach if performance is not forthcoming at that time.

The decision provides commercial expediency and allows an injured party to mitigate their damages by securing an alternative contract, rather than being forced to wait for a breach that is certain to happen. It remains a cornerstone principle of contract law, clarifying when a right of action accrues following a repudiation.

Verdict: Rule discharged. The court found for the plaintiff, holding that the action was not brought prematurely.

Source: Hochster v De La Tour [1853] EWHC QB J72 (25 June 1853)