622
Opinion of the Court
the companies waived their rights simply by urging performance. Id., § 257 (the injured party "does not change the effect of a repudiation by urging the repudiator to perform in spite of his repudiation"); see also 11 Williston § 1334, at 177- 178. Nor has the Government convinced us that the companies' continued actions under the contracts amount to anything more than this urging of performance. See 2 E. Farnsworth, Contracts § 8.22, p. 544 (2d ed. 1998) (citing United Cal. Bank v. Prudential Ins. Co., 140 Ariz. 238, 282- 283, 681 P. 2d 390, 433-434 (App. 1983) (urging performance and making "efforts of its own to fulfill the conditions" of the contract come to the same thing)); cf. 11 Williston § 1337, at 186-187. Consequently the Government's waiver claim must come down to a claim that the companies received at least partial performance. Indeed, acceptance of performance under a once-repudiated contract can constitute a waiver of the right to restitution that repudiation would otherwise create. Restatement § 373, Comment a; cf. Restatement of Restitution § 68, Comment b (1936).
The United States points to three events that, in its view, amount to continued performance of the contracts. But it does not persuade us. First, the oil companies submitted their Exploration Plan to Interior two days after OBPA became law. Supra, at 611. The performance question, however, is not just about what the oil companies did or requested, but also about what they actually received from the Government. And, in respect to the Exploration Plan, the companies received nothing.
Second, the companies subsequently asked the Secretary of Commerce to overturn North Carolina's objection to the companies' CZMA consistency certification. And, although the Secretary's eventual response was negative, the companies did at least receive that reply. Supra, at 613. The Secretary did not base his reply, however, upon application of the contracts' standards, but instead relied in large part on the findings of the new, OBPA-created, Environmental
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