How about Payzu Ltd v Saunders [1919] 2 KB 581 (CA), where the court held that accepting the offered mitigation from the breaching party (cash rather than credit) was the most reasonable course, but that the breacher is still liable
for damages. There the value of credit. Agree the issue here is foreseeability, though. I guess the argument is that the loss of access to capital would result in lost opportunity to make other investments.
You might be right in suggesting that the best argument is that the SCC has intimidation wrong.
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Matthew P Harrington
Professeur titulaire
Directeur
Programme de common law
Faculté de droit
Université de Montréal
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From: Jason W Neyers <jneyers@uwo.ca>
Sent: October 31, 2019 9:57 AM
To: Obligations <obligations@uwo.ca>
Subject: 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,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)