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Date: Sat, 17 Mar 2007 10:36

From: David Wingfield

Subject: The Wayne Rooney case


Dear John et al:

My initial reaction is that the judge was right but not for the reasons he gave.

The judge said that no tort of inducing breach of contract will lie where one of parties who is sued has the right to avoid the contract whether or not he has yet done so. Based on your summary it appears that the judge comes to this conclusion in one of two ways. Either he is saying that the tort doesn't lie because the contract couldn't be breached in this circumstance or he is saying that the right of avoidance is a defence to the tort of inducing the breach. Surely neither of these propositions can be correct. If the first is correct then it amounts to the proposition that a person who has the right to avoid a contract can never be held liable for its breach, which is not, to my understanding, Commonwealth law. In Ontario, for example, this proposition would run smack into the duty of a contracting party not to use his unilateral power of termination in bad faith. If the second is correct it creates a defence to an otherwise wrongful act without any explanation as to why there is or needs to be such a defence. The defence is, as John points out, an assertion not a reason.

Instead, I think that no tort of inducing breach of contract will lie where the contract is avoidable because in such a case there are no damages -- which the tort requires -- not because there was no breach of the contract or because the right of avoidance is a defence to the claim. If the person has the right to avoid the contract then the tort can never be complete since the parties to the contract can always avoid it and thus ensure that the plaintiff never has any damages from its breach.




From: Jason Neyers
Sent: Saturday, March 17, 2007 7:46 AM
To: John Murphy
Subject: Re: ODG: The Wayne Rooney case

Dear John:

My gut reaction is that the judge is right since any action which would amount to a breach of contract (i.e. that is inconsistent with its terms) would be an action that voids the contract. In other words, that it is impossible to induce breach since all one would be inducing was avoidance.

If the voidable contract has been affirmed then it is no longer voidable and the tort action would lie.

Another interesting question is whether the tort will lie for inducing breach of an unenforceable contract (in the Statute of Frauds sense). There is Canadian caselaw supporting such an action.

What if the action against the 2nd agent was framed as unlawful interference with economic relations (as defined by the Ontario CA in Reach M.D.)? 1) The actions of the 2nd agent seem directed at the 1st agent; 2) The 1st agent suffers loss; 3) and the 2nd agent arguably did something he was not at liberty to do (he contracted with a minor as well). Was that line of argument pursued in the case?



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