doing any act maliciously, for the purpose of procuring a breach of the contract. In other words, it gave to the obligee a right to such limited forbearance as against all the world.[1]
The right or duty thus declared is imposed by law, and, like all other rights and duties so created, is based upon reasons of expediency or sound policy, as understood by the court; and since it rests upon this foundation, and has been declared by a competent authority, the only practical question is how far the limitation extends.
Neither in Lumley v. Gye nor in Bowen v. Hall is it stated in general terms that it is a wrongful act to procure a breach of contract; but it is expressly declared that the defendants’ act is not wrongful, and therefore not a violation of any right, unless it is malicious. Thus, in the opinion of Lord-Justice Brett, “Merely to persuade a person to break his contract may not be wrongful in law or fact, as in the second case put by Coleridge, J.[2] But if the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore an actionable act, if injury ensues from it. We think it cannot be doubted that a malicious act, such as is above described, is a wrongful act in law and in fact. The act complained of in such a case as Lumley v. Gye, and which is complained of in the present case, is therefore, because malicious, wrongful.”[3]
It is perfectly clear that the word “malicious” is not used by the court in its ordinary meaning, and that the persuasion used by the defendant need not be for the purpose of gratifying feelings of hatred or ill-will toward the plaintiff; but it is also clear that a bad motive, a purpose in acting which the law condemns as unjustifi-
- ↑ Another method of stating the foundation of the rule in Lamley v. Gye is that the obligation created by a contract is a res which is the subject of ownership, and the obligee is protected as owner. See 1 Harvard Law Review, pp. 9–10, by Professor Ames. Also Piggott, Law of Torts, pp. 363, 368. Conceding this position, it may still be said that the duties imposed upon the world at large in favor of the owner of property are really founded on expediency and policy, and limited by the same considerations. Thus trespasses to property, and even the destruction of property, are often justifiable against the will of the owner. See Ames’s Cases on Torts, ch. vii. §§ 3, 4; Addison on Torts (6th ed.), ch. ii. § 1.
- ↑ The case put was this: B agrees with A to go as supercargo for A to Sierra Leone, “and C, urgently, and bona fide advises B to abandon his contract, which, on consideration, B does, whereby loss results to A. I think no one will be found bold enough to maintain that an action would lie against C.” 2 El. & Bl. at p. 247, per Coleridge, J., dissenting.
- ↑ 6 Q. B. D., at p. 338.
