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Roderick Bagshaw Magdalen College Michaelmas 2002 |
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Economic Torts – Lecture
2 |
Procuring (or
inducing) Breach of Contract |
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a. Definition |
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Intentionally, and without lawful justification to induce or procure anyone to break a contract made by him with another is a tort actionable at the suit of that other, if damage has resulted to him. Salmond & Heuston, 21st ed. p. 347 |
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b. Lumley v Gye (1853)
2 E & B 216 |
D persuades T to break contract with V |
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c. Rationale |
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Serpents! |
Lord Macnaghten, South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239, “It would be idle to sue the workmen, the individual wrong-doers, even if it were practicable to do so. Their counsellors and protectors, the real authors of the mischief, would be safe from legal proceedings.” |
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d. Glossing the definition |
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More
detail on … |
i. Mental element |
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Three ways of expressing
the same idea? |
Maliciously - = ‘with notice’ per Crompton J (Lumley at 224) Knowingly - Lord Macnaghten, Quinn v Leathem [1901] AC 495, at 510, “a violation of legal right committed knowingly is a cause of action ... it is a violation of a right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference.” Intentionally - Salmond & Heuston |
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Not quite the careful
moral philosophers’ concept of intention |
John Finnis, “Intention in Tort Law”, Ch. 10 in D. Owen ed., Philosophical Foundations of Tort Law (OUP 1995) Practical tort law: Inevitable side-effects – ignorance as to necessary methods |
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Emerald Construction v Lowthian [1966] 1 WLR 691, Lord Denning MR, “if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong.” |
D persuades T to break contract with V thinking perhaps could be lawfully terminated |
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More detail on … |
ii. Procuring |
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Procuring and advisingCamden Nominees v Forcey [1940] Ch 352 |
Tenants’ association and rent strike |
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Procuring and facilitatingBritish Motor Trade Association v Salvadori [1949] Ch 556, Roxburgh J, “in my judgment, any active step taken by a defendant, having knowledge of the covenant, by which he facilitates a breach of covenant is enough.” (Dealings with property – the ‘equitable counterpart’ – De Mattos, Strathcona & Swiss Bank) |
Purchasers promise V not to sell cars for a year, D
buys them |
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Procuring and PreventingTwo difficulties with covering ‘preventing’ 1. No breach - Merkur Island Shipping v Laughton [1983] 2 AC 570, Lord Diplock, "all prevention of due performance of a primary obligation ... even though no secondary obligation to make monetary compensation thereupon came into existence." (So we have to change the name) 2. Preventing by lawful means – e.g refusal to deal |
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Strategies for avoiding difficulty 2. 1. Draw the line between persuasion and prevention. 2. Seek to draw the line between ways of preventing by undesirable behaviour and ways of preventing by behaviour which should be outside tort. |
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The English adoption
of strategy 2. Torquay Hotel Co v Cousins [1969] 2 Ch 106 direct interference / indirect interference Weir, Casebook
(9th ed.), p. 606, “inappropriate,
dangerous and incomprehensible” |
D organizes picket lines. T will not deliver to C
because knows that its drivers will not cross. T not liable for b of c.. |
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Weir’s case against
strategy 2 Weir, Tort Law
(2002), p. 180, “This is surely to give too great a third party effect to a
private contractual arrangement” |
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Millar v. Bassey [1994] Entertainment & Media LR 44, CA Omission – where a pre-exisitng contractual duty to perform |
D breaks contract with T, so T breaks contract with V |
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Weir’s solutions to the problems with strategy
2
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Weir’s solutions to
the problems with strategy 2 1. Adopt strategy 1! 2. Absorb Lumley into the genus tort. (Weir, Economic Torts (1997)) |
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Reasons for rejecting
Weir’s second proposed solution (Bagshaw, (1998) 18 Ox JLS 729) |
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Reasons for rejecting Weir’s second
proposed solution
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1. Lumley does not involve D using unlawful means. |
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2.
The genus tort of damaging economic expectations by
unlawful means requires a narrower mental element (‘aiming at harming V’)
than Lumley |
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3. The essence of the tort in Lumley is the knowing violation of a right. The essence of the general tort is the use of unlawful means to cause harm. |
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More detail on … |
iiA. The specially
protected interest |
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“the contracting party’s willingness and existing capacity to perform”, Bagshaw, ch. 7 in Oxford Essays in Jurisprudence (4th series, edited by J. Horder, OUP, 2001) |
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More detail on … |
iii. Without lawful justification |
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Equal or superior
legal right: Edwin Hill v First National [1988] 3 All ER 801 Moral justification: Brimelow v Casson [1924] 1 Ch 302 Vaguer formulations … Glamorgan Coal Company v South Wales Miners Federation [1903] 2 KB 545, Romer LJ, “I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also to the object of the person in procuring the breach.” Lord James, [1905] AC 238 at 252 “The fact that their motives were good in the interests of those they moved to action does not form any answer to those who have suffered from the unlawful act.” NB Trade dispute
statutory immunity |
Bagshaw Website: |
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