Date: Fri, 10 Aug 2007 00:27

From: Neil Foster

Subject: Millar v Bassey and OBG

Dear Jason et al

The facts of Bassey from the headnote on EMLR are that the singer broke her contract with a record company to produce a record; the record company had already made a contract with musicians to play on that record; and hence the record company broke its contract with the musicians. The majority of the Court of Appeal, while refusing to decide the case because the facts were not clear, suggested that doing something when you know that performance of other contracts will be "impossible" because of what you do, amounted to an intention to cause breach of contract.

I think Lord Hoffmann's comment is correct. He distinguishes between cases where the end you aim to achieve logically has to be a breach of contract, even though you may have some other motive; and cases where the end you aim to achieve can be accomplished by you without breach of (someone else's) contract.

It partly depends what you mean by "inevitable"- Shirley Bassey obviously knew it was commercially likely that the company would break its contracts with the musicians, but of course they could have just decided to bear the cost themselves and still pay the musicians. However unlikely this was, it was not central to Bassey's decision to break her own contract, that the company break their separate contracts with the musicians. And her decision alone did not mean of itself that the other contracts would be broken.

This is different, of course, to the case where you may have some other motive, but your decision itself involves the breach of contract by someone else (such as Mr Gye, whom his Lordship refers to in para [42], who would have preferred to get Miss Wagner's services without inducing a breach of contract, but since she had made the contract the one decision incorporated the other). By contrast, Bassey's decision to break her contract was just that, it was not a decision which required the breaking of other contracts with other people.

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 10/08/07 12:19 >>>

Dear Colleagues:

I am having difficulty figuring out why Lord Hoffmann in OBG considers the Bassey case to have been wrongly decided (at [43]). I can see the point he is making between consequences that are the end you are pursuing and consequences that are merely foreseeable; but the (presumed) facts in Bassey were that the breach was actually known by her to be inevitable. This seems to make the breach a necessary means to her end (whatever that was) and therefore is intentional on his definition.

Am I missing something?

I know that there might be other reasons why the case is wrong (i.e. she didn't procure the breach but merely caused it) but I don't see why it is wrong on the intention point.

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