Parties to long-term service contracts often face considerable uncertainty when signs emerge that the other party may not follow through on its obligations. At common law, a party may bring an action for anticipatory breach only when the other party’s repudiation is “clear, absolute, and unequivocal”. Courts have long demanded a high threshold for such a claim, in part to guard against frivolous accusations of breach based on mere suspicion or miscommunication. But this stringent standard gives rise to a critical practical dilemma: what should a party do when it reasonably suspects the other party is not going to perform, yet cannot point to any definitive repudiation? Suppose, for example, that a contractor repeatedly misses deadlines, stops responding to communications, and is rumored to be insolvent—but has not explicitly stated an intent not to perform. Has that party repudiated? Under traditional common law principles, perhaps not. But the aggrieved party is left in a perilous bind: do they continue investing time, money, and resources into a contract that may collapse, or do they terminate the agreement and risk being accused of breach themselves?
This is precisely the kind of commercial uncertainty that the Restatement (Second) of Contracts § 251 and Uniform Commercial Code § 2-609 aim to mitigate. (See Virginia Code § 8.2-609). These doctrines create a mechanism for managing contractual insecurity without requiring parties to wait helplessly for either full breach or explicit repudiation. Under both frameworks, when one party has “reasonable grounds for insecurity” regarding the other’s performance, it may demand “adequate assurance” that the other will fulfill its obligations. This is not a demand to terminate, but a demand for clarity. If the other party fails to provide such assurance within a “reasonable time”—defined by the U.C.C. as not to exceed thirty days—that failure itself may be treated as a repudiation. This shifts the analysis from one focused solely on the subjective intentions of the potentially breaching party, to one that also accounts for the objective commercial realities faced by the insecure party. It empowers the party to take protective measures—up to and including suspending performance—without having to meet the virtually unreachable threshold of proving an unequivocal anticipatory breach at common law.
Trouble is, the U.C.C. only applies to transactions in goods, and the Restatement is not binding authority in Virginia. On May 29, 2025, the Supreme Court of Virginia issued an opinion in Under Wild Skies, Inc. v. National Rifle Association of America. At issue was whether Virginia recognizes the right to demand adequate assurance of performance in contracts not governed by the Uniform Commercial Code. The Court answered that question in the negative.
Here’s what happened, according to the opinion. Under Wild Skies, Inc. (“UWS”), a television production company, had a decades-long relationship with the NRA, producing a hunting-themed program of the same name. In 2018, the parties entered into long-term sponsorship and advertising agreements running through 2025. In mid-2019, amidst a broader internal review, the NRA sent UWS a request for detailed viewership and marketing data. UWS balked, asserting the request was neither contractually required nor routine. Through counsel, UWS warned that the request could be interpreted as an anticipatory breach, and offered to negotiate a buyout of the remaining contract term if the NRA wished to end the relationship. UWS ultimately provided the
UWS sued for breach and anticipatory breach. At trial, it proffered Jury Instruction 21, based on Restatement § 251, which would have allowed the jury to treat the NRA’s silence and failure to provide “adequate assurance” as repudiation. It read:
Where reasonable grounds arise to believe that one party to a contract will commit a breach by non-performance that would:
(1) Of itself constitute a repudiation of the contract, or
(2) So substantially impair the value of the contract to the other party at the time of the breach that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance
The other party may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.
The non-breaching [party] may treat as a repudiation the breaching party’s failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
The trial court refused the instruction, finding that it did not accurate state the law of Virginia governing contracts not involving transactions in goods. The Court of Appeals and the Virginia Supreme Court both agreed that the trial judge was correct to refuse the instruction.
The court drew a distinction between the doctrine of anticipatory repudiation, which is part of the common law of contracts in Virginia, and the doctrine of adequate assurances, which is not. Repudiation occurs before performance is due. (See Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 56 (2011)). “The abandonment of a contract will give rise to a claim for anticipatory breach.” (See Board of Supervisors v. Ecology One, Inc., 219 Va. 29, 33 (1978)). For repudiation to constitute a breach of contract, “the repudiation must be clear, absolute, unequivocal, and must cover the entire performance of the contract.” (Bennett, 282 Va. at 59).
The adequate assurance doctrine, on the other hand, originated in the U.C.C., which is limited to contracts for the sale of goods. “U.C.C. § 2-609 was drafted to remedy the perceived ‘dilemma’ posed by the common law doctrine of anticipatory repudiation for when the apparently breaching party’s action are less certain or equivocal,” the court wrote. And because this dilemma is not unique to contracts for the sale of goods, the American Law Institute added the doctrine of adequate assurance to Section 251, which applies to all contracts.
But that’s the Restatement, not Virginia law. “To date,” the court observed, “no Virginia appellate court has recognized the right to demand adequate assurance under Restatement § 251.” The court held that the decision to adopt a new doctrine applicable to all contract disputes is for the legislative branch to make. Therefore, the trial court did not err in refusing to adopt the jury instruction as it did not accurately state the law in Virginia.
For anticipatory breach to lie in a contract dispute not involving the sale of goods, the alleged repudiation must be “clear, absolute, and unequivocal.” Ambiguous conduct or silence will not suffice. Virginia businesses cannot assume they have a right to demand “adequate assurance” in long-term service contracts.