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Kenneth Vercammen & Associates
A Law Office with Experienced Attorneys for Your New Jersey Legal Needs

2053 Woodbridge Ave.
Edison NJ 08817

Personal Injury and Criminal
on Weekends 732-261-4005

Princeton Area
68 South Main St.
Cranbury, NJ 08512
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Toll Free 800-655-2977

Civil Model Jury Charge 4.10 M. ANTICIPATORY BREACH


1.Definite and Clear Repudiation

If the defendant clearly indicates through words or conduct before the time for performance has arrived, that the defendant would not or could not perform the contract, the plaintiff would be entitled to treat that indication as a breach.[1]To qualify as a breach, the defendants indication of non-performance must have been definite and clear.

A defendant can take back a previously stated or demonstrated unwillingness or inability to perform if the repudiation of the contract is withdrawn before the plaintiff:[Choose option:(1) substantially changes position; (b) brings an action for damages.][2]

2.Demand for Adequate Assurances[3]

If you find that (1) the plaintiff had reasonable grounds to support his/her/its belief that the defendant would breach the contract, (2) the plaintiff demanded assurances from defendant that he/she/it would perform in accordance with the contract, and (3) the defendant failed within a reasonable amount of time to provide adequate assurances that he/she/it would perform in accordance with the contract, then plaintiff may treat defendants failure to provide adequate assurances as a breach of the contract.

[1]The anticipatory breach must be a material breach to discharge the other party.Ross Systems v. Linden Dari Delite, Inc.,35N.J.329 341 (1961).Whether sellers refusal to perform a contract for sale of a retail food business constituted an anticipatory breach is a fact question for the jury.Semel v. Super,85N.J.L.101 (Sup. Ct. 1913).

[2]See, Neptune Research & Development v. Teknics Industry System,235N.J. Super.522, 534 (App. Div. 1989) andMiller and Sons Bakery Co. v. Selikowitz, 8N.J. Super.118, 123 (App. Div. 1950).

Note:Where defendant repudiates the contract after plaintiff has performed, plaintiff may be entitled to restitution of what plaintiff gave, as an alternative remedy.Shea v. Willard,857N.J Super.446, 451 (App. Div. 1984).

Note:Where the contract involves the sale of goods, the rights of the parties are governed byN.J.S.A.12A:2-610.As to an anticipatory breach of installment sales contracts, the court said inGraulich Caterer, Inc. v. Hans Holterbosch,101N.J. Super.61 (App. Div. 1968):Replacing considerations of anticipatory repudiation and the material injury with the test of substantial impairment,N.J.S.12A:2-612 adopts a more restrictive seller-oriented approach favoring the continuance of the contract in the absence of an overt cancellation.SeeComment to Sec. 12A:2-612, par. 6; also New Jersey Study Comment, par. 2; Hawklandsupra,3, c. (3), p. 116.To allow an aggrieved party to cancel an installment contract,N.J.S.12A:2-612(3) requires (1) the breach be of the whole contract which occurs when the nonconformity of one or more installments substantially impairs the value of the whole contract; and (2) that seasonable notification of cancellation has been given if the buyer has accepted a nonconforming installment.(At p. 75).

Note:UnderN.J.S.A.12A:2-508, a defective tender of goods subject to theSales Act(N.J.S.A.12A:2-101et seq.) which may have been an anticipatory breach, as inParker v. Pettit,43N.J.L.512 (Sup. Ct. 1881), may be cured by reasonable notice of intent to render proper performance.

[3]The modern view of anticipatory repudiation includes cases in which reasonable grounds support the obligeesbeliefthat the obligor will breach the contract.Spring Creek Holding Company, Inc. v. Shinnihon U.S.A., Ltd., 399N.J. Super.158, 179 (App. Div.),certif. denied, 196N.J. 85 (2008);see also Magnet Res., Inc. v. Summit MRI, Inc.,318N.J.Super.275, 288 (App. Div. 1998).The questions of whether plaintiffs asserted grounds for demanding assurance arereasonable, and whether defendants assurance isadequate, are questions ordinarily determined by the fact-finder.Spring Creek,supra,at 179-84 (discussing certain factors which may be considered by the fact-finder).

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.


Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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