Virginia Supreme Court Rejects Adequate Assurance Doctrine in Contract Disputes
Under Wild Skies, Inc. v. National Rifle Association of America, Record No. 240683 (Va. May 29, 2025)
Under Wild Skies (UWS) produced a hunting television show sponsored by the NRA for 26 years. In 2018, they entered new agreements requiring the NRA to make quarterly payments through 2025. In July 2019, the NRA requested detailed information about the show as part of an internal review sparked by a potential New York Attorney General investigation. UWS initially resisted, sending a letter suggesting this could constitute anticipatory breach and requesting a negotiated buyout if the NRA wanted to terminate. UWS ultimately provided the information, but the NRA never responded and failed to make one of its periodic payments. UWS sued for breach of contract and anticipatory breach.
At trial, UWS sought to introduce Jury Instruction 21 based on Restatement (Second) of Contracts § 251, which would have allowed the jury to find that the NRA’s failure to provide adequate assurance of future performance constituted repudiation. The trial court refused the instruction, stating it would cause the court to “comment on the evidence.” The jury found for UWS on the breach of contract claims but for the NRA on the anticipatory breach claims. UWS appealed to the Court of Appeals, which concluded that the trial court did not err in refusing Jury Instruction 21 because Virginia did not recognize the doctrine of adequate assurance.
UWS appealed the Court of Appeals decision, but the Supreme Court affirmed. It distinguished the doctrine of adequate assurance, which originated from the Uniform Commercial Code § 2-609 and later incorporated into Restatement § 251, from traditional common law doctrines. Under Virginia law, repudiation must be “clear, absolute, unequivocal, and must cover the entire performance of the contract.” Jury Instruction 21, however, would have expanded that definition beyond current law by allowing a failure to provide assurance to constitute repudiation. It recognized that the General Assembly had adopted adequate assurance doctrines in limited circumstances, such as the sale of goods and commercial leases, but declined to extend it broadly because such policy decisions should be left to the legislature.