Date: Fri, 6 Jul 2007 08:04

From: John Murphy

Subject: Criminal Breach of Contract

Dear Jason and everyone else:

As far as I know there is no criminal law equivalent to the provision you mention. But that statement doesn't count for much ... there's an awful lot about English criminal law that I don't know.

However, I do have a view on the Canadian provision, the heading for which is, in my view, apt to mislead slightly.

As I read the section, the breach of contract is not the actus reus of the offence. It is one of the items on the list of prescribed consequences that completes the crime. Notice that in the opening words, the defendant's intention is specifically linked to those consequences, not to the breach of contract. That is a mere medium. The breach is not being treated as a heinous wrong towards the other contracting party. There is no requirement that it must be the other contracting party's life/health/property that should be jeopardized; the public transport examples make that abundantly clear. In short, it is not a provision about some particularly evil breach of contract from the perspective of the innocent contracting party.

The interesting question, then, is why the Canadian legislature should draw attention to that particular medium (ie, the breach of contract). For what it is worth, I think that the answer is that the existence of a contractual duty is really only important here because it provides a basis on which to make someone criminally liable for an omission: failing to do what he or she was bound to do by the contract.

Thus: Because A has a pre-existing contractual duty towards B to do X, his deliberate failure to do X in the knowledge that one of the prescribed consequences will (probably) arise makes him criminally liable for a crime/attempted crime.

John Murphy

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