To me, the case seems a clear one of breach of contract and the
contractual test of remoteness should apply to determine the damages
to be recovered. I don't agree that some different measure should be
applicable because the wrong is said to have been deliberate,
malicious, or whatever other pejorative term one uses. The fact is
that contracts are deliberately breached every day, especially in
commercial law without additional damages being awarded on that
account.

Kind regards

Ger

On 11/1/19, Murphy, John (murphyjr) <j.murphy2@lancaster.ac.uk> wrote:
> Dear All,
>
>
> Some interesting thoughts here. But I have certain worries about some of
> the things that have been said.
>
>
> In Jason's email there was talk of the threat being an "anticipatory
> repudiation". I have my doubts about this. In intimidation cases, the
> threats are of the "or else" variety. But when X commits an anticipatory
> breach, isn't the threat - effectively, "I'm telling you now that I won't
> perform my side of the bargain" - of a qualitatively different kind? The "or
> else" requirement in intimidation is key. It is what drives the person
> threatened to behave in a way that the person issuing the threat desires.
>
>
> In Andrew's email there was talk of an implied term that neither party will
> do anything deliberately designed to prevent the contract being performed as
> originally agreed. This could do the trick, but it would be difficult in
> practice - I dare say impossible - to devise such a term that didn't
> potentially threaten the well-established facility to vary contracts.
>
>
> In Ewan's email there was the suggestion that we should take a steer from
> the tort of deceit/fraud on the basis that fraud and intimidation involve
> deliberate and malicious wrongs. The role of malice in tort is always a
> prickly subject. Also, talk of deliberate wrongdoing in the context of
> deceit is an awkward beast. Classically a false statement will suffice if it
> were made (i) without belief in its truth, or (ii) recklessly, careless
> whether it be true or false.
>
>
> If the muddy waters of two-party intimidation are to be cleared, then it
> seems to me that we would do well to filter out thoughts such as those above
> given that they tend to obfuscate and complicate (rather than clarify and
> simplify) things.
>
>
> John Murphy
>
> From: Moshood Abdussalam <moshood.abdussalam@aut.ac.nz>
> Sent: 01 November 2019 00:00:13
> To: Jason W Neyers <jneyers@uwo.ca>; Obligations <obligations@uwo.ca>
> Subject: [External Sender] RE: 2-party Intimidation and Breach of Contract
>
>
> This email originated from outside of the University. Do not click links or
> open attachments unless you recognise the sender and know the content is
> safe.
>
> Hello Prof Neyers,
>
>
>
> I agree with the Supreme Court that a case of two-party intimidation (as
> opposed to one of three-party intimidation) is simply a contractual holdup,
> and, therefore, a breach of contract. Why should a breach of contract be
> treated as an economic tort when unaccompanied by exceptional factors (e.g.
> public interest concerns--as in the case of professional impropriety or
> misconduct by one’s lawyer)?
>
>
>
> The scenario presented is surely an interesting one and arouses sympathy for
> the victim in the issue who has lost an opportunity to earn $10,000.
> However, in my opinion, the case calls for a bit of rethinking of Hadley v
> Baxendale/ the remoteness rule in contract law. As I can glean from the
> facts presented, the parties had a one-off transaction, and as such, going
> by Hadley, the victim should have intimated the ‘intimidator’ of his
> exposure to economic losses should a breach arise. Notice to the intimidator
> concerning the victim’s business affairs would be a fair requirement in that
> situation. However, if the parties have had a course of dealing over time
> with both parties knowing each other’s business practices quite well—for
> example, that the victim is a businessperson—then the context of dealing
> should govern. In other words, the victim does not have to expressly or
> implicitly bring notice to the intimidator (i.e. the promisor) of his likely
> exposure to loss. If it would be apparent that the intimidator, at the time
> of (contemplating) breach, should have been aware that a breach would expose
> the victim to economic loss, then that should be enough to impose liability
> on the intimidator for the ensuing economic loss.
>
>
>
> The remoteness rule should not be rigidly tied down to the requirement that
> a promisee must intimate the promisor of his exposure to loss. Such a
> requirement in ‘repeat contracting’ creates a risk of weakening the
> bargaining position of promisees, particularly as they have to disclose
> their affairs, and possibly trade secrets, to promisors. A course of dealing
> between the parties, if established, should be considered as a sufficient
> information resource available to the promisor to fix him with knowledge or
> awareness of his victim’s likely exposure to economic loss.
>
>
>
> Regards
>
>
>
> Moshood.
>
>
>
>
>
> From: Jason W Neyers <jneyers@uwo.ca>
> Sent: Friday, 1 November 2019 2:57 AM
> To: Obligations <obligations@uwo.ca>
> Subject: {Spam?} 2-party Intimidation and Breach of Contract
>
>
>
> Dear Colleagues:
>
>
>
> Assume that A and B have a contract for the rental of a venue for a wedding
> reception. Hours before the reception, B threatens to lock A out unless A
> makes an additional payment of $1500. A makes the payment, but in so doing
> is rendered unable to invest in a valuable business opportunity that turns
> out to be wildly successful (ie losing a profit of $10,000). Is there a way
> for A to recover the $10,000?
>
>
>
> An action for duress would only led to a return of the $1500.
>
>
>
> An action for breach of contract would seemingly fail as the contract was
> not actually breached (the venue was provided) and the anticipatory
> repudiation was not accepted by A (for good reason). Even if one could argue
> that there was a breach of some duty imposed by Bhasin v Hrynew it seems
> likely that the damages would run afoul of the Hadley v Baxendale remoteness
> rule.
>
>
>
> A claim in 2-party intimidation would arguably fail, at least in Canada,
> since our Supreme Court has intimated that a threatened breach of contract
> is not unlawful means for the tort of intimidation. Instead the court stated
> that A should sue for breach of contract instead which would lead to no
> recovery (see above).
>
>
>
> Does this seem right? If this is correct, and one thinks that there should
> be recovery, what is the means of recovery? I am leaning towards thinking
> that the SCC was wrong to suggest that breaches of contract can never be
> unlawful means for two-party intimidation, but am very interested in your
> thoughts.
>
>
>
> Sincerely,
>
>
>
>
>
>
>
> [esig-law]
>
> Jason Neyers
> Professor of Law
> Faculty of Law
> Western University
> Law Building Rm 26
> e. jneyers@uwo.ca<mailto:jneyers@uwo.ca>
> t. 519.661.2111 (x88435)
>
>
>