Intentional Interference with Contract and the Doctrine of Efficient Breach: Fine Tuning the Notion of the Contract Breacher as Wrongdoer

Buffalo Law Review, Vol. 47, 1999

Posted: 9 Feb 1999

Abstract

Two starkly opposing approaches to the tort of intentional interference with contract are currently being entertained by courts. One approach starts from the premise that a contract breacher is a wrongdoer and that anyone who intentionally causes such wrongdoing is herself a wrongdoer. The other approach builds from the notion that the contracting party who chooses to breach a contract has very likely made a socially desirable choice and anyone who intentionally causes such behavior should be applauded. In each case, the blame- or praiseworthiness of the breacher's actions is extended to the alleged tortfeasor who has intentionally induced the breacher to breach. The view of breacher as wrongdoer is quite inconsistent with modern contract law, and when the tort of interference with contract is founded on this view it leads to the spectacle of tort law seeking to deter the very same behavior that contract law encourages. But the alternate view, as the courts seem to understand it, calls for the overturning of compelling interference precedents. This article proposes a third way: one that recognizes that a contract breacher sometimes is, and sometimes is not, a wrongdoer. This approach is consistent with modern contract law and shows why some of the interference precedents present compelling cases for liability and should not be overruled. No hint of this approach is to be found in judicial opinions, but it does a remarkable job of explaining the outcomes of cases.

Suggested Citation

Remington, Clark A., Intentional Interference with Contract and the Doctrine of Efficient Breach: Fine Tuning the Notion of the Contract Breacher as Wrongdoer. Buffalo Law Review, Vol. 47, 1999, Available at SSRN: https://ssrn.com/abstract=148553

Clark A. Remington (Contact Author)

affiliation not provided to SSRN ( email )

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