What is the Doctrine of Further Assurances?
In the field of contract law there is concept known as “further assurances”. Typically it arises in situations involving the Uniform Commercial Code i.e., for the sale of goods. However it can arise in other circumstances. The so-called “doctrine of adequate or further assurance” was first adopted in Article II of the Uniform Commercial Code. Section 2-609 says that when reasonable grounds for insecurity arise with respect to the performance of either party, the other may in writing demand adequate assurance of due performance. Until that party receives such assurance, they may if commercially reasonable suspend performance. If the requested assurance is not forthcoming within 30 days, then the party making the demand may treat it as a repudiation of the contract.
Within this concept there are three (3) common law doctrines at work:
- One of them is the doctrine of anticipatory breach. That arises in instances where before performance is due, the promisor’s actions are uncertain or equivocal.
- The second common law doctrine at work is the duty to mitigate damages. That imposes on each party a duty to minimize its damages in the event of a breach.
- The third doctrine is the so-called “implied covenant of good faith and fair dealing”. That likewise is recognized under Virginia law. Under Wild Skies, Inc. v. NRA of America, 304 Va. 310, 319 (2025)
In the above-cited case, the Virginia Supreme Court had the opportunity to affirm the doctrine of further assurances as part of Virginia’s common law. It chose not to do so. Rather it deferred saying that any such change should come from the General Assembly.
The Doctrine of Further Assurances Has Been Successful Nationwide
That action by the Supreme Court is somewhat surprising since the doctrine of further assurances has been successful nationwide. It has been applied to all contracts in Section 251 of the Second Restatement of Contracts.
The doctrine may have some limited application at least by inference in tort situations. For instance in a landlord/tenant situation where there is an arguable breach by the landlord, the tenant may request further assurance in order to avoid potential personal injury. If that assurance is not forthcoming, that arguably could be a basis for the tenant vacating the premises.
Call, or contact us for a free consult. Also for more info on contract litigation see the Wikipedia pages. Also see the post on this site dealing with contract issues.
