Does Anticipatory Breach Exist Under UAE Law?

Analysis

The doctrine of anticipatory breach is found in English common law. It holds that if, before performance is due, a party expresses an intention to break the contract by not performing (or otherwise acts in such a way to lead a reasonable person to the conclusion that the party does not intend to perform), then this is an “anticipatory breach” and entitles the other party to accept the repudiation and seek damages immediately, or wait until performance is due and then seek damages for the failure to perform.

No similar doctrine is known to exist under UAE law, but a recent Dubai Court of Cassation judgment appears to confirm a recent trend by the courts to create a similar doctrine for off-plan real estate disputes. In Dubai Court of Cassation judgment 200/2013 (Real Estate Appeal) the court decided that a buyer may legitimately withhold the performance of his due obligation (to price), if there are serious reasons to lead the purchaser to believe that developer, though presently not in breach, will fail to perform his future obligation (to deliver the unit on time).

Facts of the case: