David

Do you say that this is not a breach of contract? If so, why is it not
a breach of contract?

I accept there may well also be a restitutionary claim but that would
seem to be an alternative claim surely? The contractual and
restitutionary claims are not mutually exclusive but alternatives, I
would have thought.

Kind regards

Ger

On 11/2/19, davidrwingfield@gmail.com <davidrwingfield@gmail.com> wrote:
> I don’t think that Canadian restitutionary law is now based in contract. I
> thought that the great achievement of the SCC in this area was ridding the
> doctrine of its quasi-contractual history that was a product of the old
> forms of action. Here, the problem is that money was extorted from A by B’s
> threatening an outcome that could not be compensated in damages (ruining a
> wedding). This seems to be a straightforward application of restitutionary
> principles. As a practising trial lawyer, that’s the claim I would advance.
> The court would have no hesitation in giving restitutionary relief here.
>
> Kind regards,
> David
>
> Sent from my iPhone
>
>> On Nov 2, 2019, at 12:30 PM, Harrington Matthew P.
>> <matthew.p.harrington@umontreal.ca> wrote:
>>
>> I wondered if unjust enrichment might come up. I thought about it as
>> well and discarded it because the basis of the action seems to lie in
>> contract, at least in Canada.
>>
>> Haven’t the parties, therefore, provided for a reasonable allocation of
>> risk? If so, why should the law step in and create a new regime that
>> avoids the consequences of that allocation. See Lumbers, Pan Ocean
>> Shipping, and Costello.
>>
>> Working on this problem now so would be very, very interested in hearing
>> responses or criticisms of this. (Please do send me your articles or
>> works on this subject if you would be willing.)
>>
>> Regard
>> Harrington
>>
>> ------------------------------------------------
>> Matthew P Harrington
>> Professeur titulaire
>> Directeur
>> Programme de common law
>> Faculté de droit
>> Université de Montréal
>>
>>
>>
>> -------------------------------------------
>>
>> -----Original Message-----
>> From: davidrwingfield@gmail.com <davidrwingfield@gmail.com>
>> Sent: November 2, 2019 10:38 AM
>> To: Gerard Sadlier <gerard.sadlier@gmail.com>
>> Cc: Murphy, John (murphyjr) <j.murphy2@lancaster.ac.uk>; Moshood
>> Abdussalam <moshood.abdussalam@aut.ac.nz>; Jason W Neyers
>> <jneyers@uwo.ca>; Obligations <obligations@uwo.ca>
>> Subject: Re: [External Sender] RE: 2-party Intimidation and Breach of
>> Contract
>>
>> Can’t Jason’s fact pattern best be analysed under principles of
>> restitution (no juristic reason for B to receive A’s $1500).
>> Established principles of restitution wouldn’t allow A to claim in
>> restitution for derivative economic loss from the unlawful wealth
>> transfer. So the answer to Jason’s question would be no.
>>
>> Kind regards,
>> David
>>
>> Sent from my iPhone
>>
>>> On Nov 2, 2019, at 10:03 AM, Gerard Sadlier <gerard.sadlier@gmail.com>
>>> wrote:
>>>
>>> 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)
>>>>
>>>>
>>>>
>