Wild Doctrines Can’t Be Broken: Why the Virginia Supreme Court Reined in Adequate Assurance

In a May 2025 decision, Under Wild Skies, Inc. v. National Rifle Association of America, the Supreme Court of Virginia declined to incorporate the doctrine of “adequate assurance” (Restatement (Second) of Contracts § 251) into Virginia’s common law. For contract lawyers and commercial litigators, this ruling establishes a key boundary in anticipatory breach doctrine in the Commonwealth.

The Backdrop

For over two decades, the NRA and Under Wild Skies (UWS), a hunting-themed TV show, shared a mutually beneficial sponsorship relationship culminating in a new multi-year contract. By sponsoring the television show – and advertising its mission – the NRA’s goal was to expand its reach within the hunting community. But by mid-2019, the NRA began requesting detailed show metrics—airtime, viewership, marketing—under the guise of a vendor review, allegedly tied to a New York AG compliance probe.

Sensing trouble, UWS’s counsel responded in writing that the NRA’s information request could be seen as an anticipatory breach of contract and floated the idea of a buyout. The NRA ignored the letter and failed to make its next scheduled payment. A lawsuit commenced in which both parties brought competing breach of contract claims– and a pivotal battle over jury instructions ensued.

The Legal Crux: What Is “Adequate Assurance”?

Drawing from Restatement § 251, UWS offered Jury Instruction 21. This instruction allows a party to demand, in writing, an “adequate assurance” of performance if they reasonably suspect the other side will breach. Failure to provide that assurance, under the Restatement, can itself amount to repudiation of the contract.

The trial court rejected the instruction, and the Court of Appeals affirmed. The case was then appealed to the Virginia Supreme Court. UWS argued that Virginia should “follow the lead of other state courts and recognize the right to demand adequate assurance…as part of Virginia’s common law.”

The Court declined to do so and affirmed the Virginia Court of Appeals. Why?

Because Virginia’s current doctrine on anticipatory breach sticks to the classics: a repudiation must be clear, absolute, and unequivocal, covering the entire performance of the contract. Suspicion, innuendo, or failure to reassure doesn’t cut it—at least not yet. The Court reasoned that the General Assembly – while adopting the doctrine of adequate assurance in limited circumstances such as sales of goods or commercial leases – “has stopped short of adopting the doctrine more broadly.” Service contracts, such as the one at issue in this case, are not covered. As a result, the Court held that adapting the doctrine of adequate assurance to such contracts “is a policy decision that is more appropriately left to the legislature.”

Key Takeaways

1. No Restatement Leap
   While a handful of other states have embraced it in limited contexts, the Virginia Supreme Court held that Restatement § 251 is not Virginia law.
2. Legislative Arena Only
   The opinion emphasizes that the General Assembly has already adopted adequate assurance provisions—but only for UCC-governed contracts (sales of goods, commercial leases). Expanding it beyond that is a policy decision left to lawmakers, not the judiciary.
3. Contract Drafters: Take Note
   If you want the right to demand adequate assurance in non-UCC contracts in Virginia, write it in. Without express language, don’t count on the courts to imply that protection.
4. Jury Instructions Must Track Virginia Law
   Even if based on scholarly or national authority, a jury instruction must mirror existing Virginia law. While trial judges are not obligated to revise or “fix” a flawed instruction proposed by counsel, they do have an overarching duty to ensure the jury is properly instructed on the law. In this case, the trial court’s refusal to give the proposed instruction was not error—because the doctrine of adequate assurance simply doesn’t apply to service contracts under Virginia law. The instruction wasn’t just unhelpful—it was legally inapplicable.

Final Thoughts: The Unspoken Chill

The decision in Under Wild Skies confirms Virginia's conservative posture when it comes to evolving contract doctrine. While other states have blazed new trails, the Commonwealth won’t saddle up and ride. Unless the General Assembly forges a new path, adequate assurance will dwell beyond the fence line—roaming under the skies of the wild.

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If you have any questions about this post or other appellate issues, please contact Mo Sherman or another member of our Appellate Team.