In Afovos Shipping Co. Ltd. v. Pagnan (The Afovos)1 a time charter provided for payment semi-monthly in advance, with a liberty to withdraw the vessel failing punctual and regular payment. This was mitigated by a so-called “anti-technicality” clause which required the owner “when hire is due and not received” to give 48 hours’ notice before exercising the option of withdrawal. The owner gave such notice at 4.40 p.m. on the relevant day: the charterers argued that the notice was invalid as given before the right to withdraw had accrued. The House of Lords held that the right accrued at midnight on that day, and hence the notice was premature and ineffective.

As it stands this is simply a decision on the interpretation of the two clauses concerned. An argument was, however, put forward that by the time of giving of the notice it was already impossible for the charterers in Italy to transfer money which would be credited in London on the due date. This involved an invocation of the doctrine of anticipatory breach of contract, and the House held that the doctrine had no application to such a clause. This is not surprising: but Lord Diplock, with whom Lord Hailsham, L.C., expressly concurred on this issue, went further and expressly said that the clauses in question constituted the failure to pay a breach of condition, and that the doctrine of anticipatory breach has in general no application to breaches of condition: “it is to fundamental breaches alone that the doctrine of anticipatory breach is applicable. The doctrine of anticipatory breach is but a species of the genus repudiation and applies only to fundamental breach”.2

The point could have been decided simply by saying that anticipatory breach does not apply to express clauses giving the right to withdraw or cancel. In a similar decision concerning the cancelling clause, The Madeleine,3 Roskill, J., made clear that his decision that the right to cancel could not be exercised prematurely was based solely on the wording of the clause, and did not dissent from the proposition that rights given by the common law doctrine of discharge by breach remained extant.4 The cancelling clause can of course be exercised where there is no breach at all: in this respect it differs from the withdrawal clause, for non-payment is in this context likely to be a breach and thus the description of the clause as creating a condition of the contract is more plausible. It is also true, as Devlin, J., said in Universal Cargo Carriers Corporation v. Citati,5 that most anticipatory breaches are or can be treated as repudiations. But it is not necessary to treat a withdrawal clause as creating a condition; and it has also normally been assumed that if one party can show that the other is wholly and finally disabled from performing a condition, he is justified in treating the contract as discharged (even if he gave some other reason at the time). This is suggested by the