Where a contract confers an express right to terminate for non-performance within a specified time, that right may be lost by election if the innocent party continues to insist on performance, obtains valuable benefits, and otherwise affirms the contract after the right accrues. However, loss of the express termination right does not preclude termination at common law for repudiation by renunciation. Where no time for performance is specified, the law implies a reasonable time, and a notice to perform fixing a further reasonable time is required before termination for delay — unless the defaulting party has also repudiated the contract. Repudiation by inability to perform requires proof that the party is 'wholly and finally disabled' from performing; past failures alone are insufficient without consideration of current and prospective capacity.
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