I would agree with this old-fashioned notion that there’s no contractual damages here – either the agreement to pay the additional amount is supported by consideration, in which case the variation
would be voidable for economic duress, or not there’s no contract to vary – either way, the additional payment is recoverable as unjust enrichment, but the contract is never breached. At the time at which performance is required, performance happens, so there’s
never any question of contractual damages.
The real question, in my view, is the one that Jason gets at – how do we account, if at all, for the losses suffered as a result of the extorted payment beyond the payment itself? It seems to me
like a clear case of two-party intimidation – following Devlin in Rookes and Salmond rather than the SCC, the threatened breach of contract is a threatened infliction of wrongful harm which causes the party threatened to incur some other, presumably
lesser (because that’s the course chosen by the threatened party in the moment), losses. As for how much of the losses the tortfeasor – if that’s what B is in Jason’s hypothetical, which I think is the case – should be responsible for, there’s a good amount
of authority out there to the effect that an “intention to injure the plaintiff negatives all excuses and disposes of any question of remoteness of damage” (Lord Lindley,
Quinn v Leathem) and that intentional wrongdoers can’t argue that the losses caused by their wrongdoing were not reasonably foreseeable (Lord Denning,
Doyle v Olby (Ironmongers) – both sources taken from Cartwright’s “Remoteness of Damage in Contract and Tort”). If this question boils down to whether remoteness limits damages in two-party intimidation, my sense would be that it doesn’t, so B should
be liable for any damages actually flowing from the threatened breach.
Greg
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GREG BOWLEY Assistant Professor Faculty of Law University of New Brunswick PO Box 4400 41 Dineen Drive Fredericton NB Canada E3B 5A3 T +1 506 458 7649 |
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From: Jack Enman-Beech <jenmanbeech@gmail.com>
Sent: November 2, 2019 2:57 PM
To: Gerard Sadlier <gerard.sadlier@gmail.com>
Cc: davidrwingfield@gmail.com; Harrington Matthew P. <matthew.p.harrington@umontreal.ca>; 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
✉External message:
Use caution.
Can a party unilaterally alter existing contractual obligations by having their solicitors send out letters protesting great losses in the event of nonperformance? If the investment
loss was not foreseeable at the time of formation, I would think the venue is not responsible. I do not share the intuition that A ought to get the $10,000.
Jack Enman-Beech
SJD Candidate, University of Toronto Faculty of Law
On Sat, Nov 2, 2019 at 1:43 PM Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
Dear David
I quite agree with you that a restitutionary remedy would be available
for recovery of the C$1,500. I do not think though that a
restitutionary claim for the $10,000 could ever succeed. I do think
that there are cases in which that claim would succeed if brought in
contract, if remoteness was not an issue (because say the claimant's
solicitors had written expressly notifying the party in breach of the
loss that would be suffered and calling on them to honour their
contract and the party in breach had declined). I therefore
respectfully disagree with your view that the Courts would never make
an award of the $10,000, though the facts would need to be strong and
I accept remoteness is an issue that would have to be addressed.
I completely agree with you that the Courts are practical and that the
judge will see this as a case of extortion. In a proper case the
Court may well be anxious to award the $10,000, if it can find a
legally sound means of doing so.
I have to say that in this jurisdiction, at least, I think this case
would be pleaded to include alternative claims, in tort, contract and
restitution and that it would probably be run as a breach of contract
claim, to maximize pressure on the other side, since they will not be
advised that the Court is simply not going to award the $10,000 as
damages. Matters may of course be different in Canada or indeed in its
different provinces, I suppose.
Kind regards
Ger