“We Trusted Them — Then They Walked Away”: How to Sue for Anticipatory Breach Before the Damage Is Done

By Jesse David Eisenberg, Esq. | JDE Law Firm, PLLC

You're under contract. Everything is in place. Then the other side sends a message that changes everything:

“We’re not moving forward.” “We’re pulling out.” “We won’t be paying the rest.”

It’s not just frustrating — it’s financially dangerous. When a party clearly indicates they won’t honor the agreement, you may not need to wait for the breach to occur.

You can sue now. It’s called anticipatory breach — and if you wait too long, you could lose your chance to control the damage.

What Is Anticipatory Breach?

Anticipatory breach (also called anticipatory repudiation) happens when one party unequivocally communicates that they will not perform their future obligations under a contract.

Examples include:

• A client who says they won’t pay the second half of a project
• A tenant who informs you they’ll be breaking the lease early
• A contractor who refuses to complete the remaining work

Under New York and New Jersey law, this gives the other party the right to sue immediately — rather than waiting for the breach to become final.

Why File Now Instead of Waiting?

• Preserve your leverage: Filing early can freeze assets or stop further losses.
• Strengthen your negotiation position: The threat of immediate litigation often drives settlements.
• Protect your mitigation efforts: Courts expect you to act reasonably to reduce damages — and delay can hurt your case.

What You Need to Prove

To win an anticipatory breach claim, you must show:

• A valid contract exists
• The other party made a clear, unequivocal statement that they will not perform
• You were ready and willing to perform your part

Warning: Vague doubts, silence, or "maybe we’ll cancel" talk is usually not enough. You need strong written evidence or conduct that unmistakably signals refusal.

What Can You Recover?

Courts may award:

• Lost profits
• Out-of-pocket losses
• Consequential damages
• Possibly attorney’s fees (if your contract includes a clause)

We’ve helped clients secure six-figure judgments in these cases by moving swiftly — often before the other side had time to restructure or hide assets.

Don’t Let the Exit Hurt More Than the Breach

If a business partner, vendor, tenant, or client has made it clear they’re not following through — don’t wait to act. Every day of delay puts more at risk.

📞 Schedule a strategic consult with JDE Law Firm, PLLC:
www.jdelaw.nyc | NY: 718-966-0877 | NJ: 732-490-7120

My business is to protect your business.