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law do not justify this view. As every one knows, there are interests or rights which are highly protected and other interests which are only moderately protected. There is the almost absolute protection given to a landowner against the physical entry of others on his land, and there is the comparatively limited protection given to the same man against the institution of an unfounded criminal prosecution.

When A sues B for inducing C to refrain from entering into a contract relation with A, just what is the right in A which he claims has been infringed by B?

It is not a right to compel C to contract with him. Indeed it is not a right against C at all. It is a right against third persons that C should be left reasonably free to contract with A; that no improper means should be used by them to restrain C from contracting with A.'

“The peculiar element of the newly recognized right is that it is an interest which one man has in the freedom of

It is a right to a reasonably free market, freedom on both sides of the market, freedom on the part of both buyer and seller of goods and labor.4 ... a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him.” 5

It may be said that when C declines to enter into a contract with A, A "loses nothing to which he has a legal right, and he has no legal ground of complaint against the person who refuses to contract with him.” 6 This may be true as between A and C; but non constat that A is remediless against B, if B's unlawful interference prevented C from entering into a contract which he




1“ It must be constantly borne in mind that the purpose of this action is not to compel the manufacturers, against their will or disposition, to sell their goods to the plaintiff, but its purpose is to enjoin the association, its active members, committees, and agents, from compelling manufacturers or dealers against their will to refuse to sell their property to the plaintiff, by a system of intimidation and boycotting.” Dissenting opinion of Martin, J., in John D. Park v. National, etc., 175 N. Y. 1, 42.

2 Better "newly formulated.” 3 Stevenson, V. C., in Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 765.

4 See Stevenson, V. C., in Atkins v. Fletcher Co., 65 N. J. Eq. 658, 664, and also in 63 N. J. Eq. 766.

6 Lord Lindley in Quinn v. Leathem, (1901) A. C. 495, 534.

6 “He could not have sued the Gibson Mill for discharging him at the end of the day. How, then, can he sue the defendant company for procuring the Gibson Mill to do something which it had the legal right to do?” Connor, J., in Holder v. Cannon Mfg. Co., 138 N. C. 308, 309.

would otherwise have made with A. It may be within C's legal right, as against A, to refrain from doing a certain act, but it does not necessarily follow that it is within B's legal right, as against A, to induce C to refrain. The existence of this right or interest claimed by A against third persons is conclusively established by the cases which hold B liable to A where B has, by force, prevented C from entering into business relations with A.2 The only question is, how fully does the law protect the interest which it thus clearly recognizes? Is it protected only against methods of the kind denominated “intrinsically unlawful,” or is it protected against other methods which exceed the proper limits of economic struggle? 8

There are two views, which represent opposite extremes:

One view is that there is a specific right which the law protects as fully as the right to have one's land free from invasion. Any interference, by any method, with my right to have other persons left free to contract with me is not only a primâ facie tort, but .2 tort which can seldom be justified. The “right" is not to be violated with impunity, unless under circumstances as exceptional as those required to justify an entry on real estate, or at least as exceptional as those required to justify the inducing of a third person to break his contract.4

Another view is that the mere fact of successful interference does not per se give a prima facie cause of action. There is no action unless the method of interference is in itself an actionable tort, e.g., force. On this theory the law takes notice of my violated right so far as to include it as an element in the assessment of damages when a tort has been committed apart from the caus

1 In Jacobs v. Cohen, 183 N. Y. 207, it was held that an employer could not avoid a note given to secure the performance of his contract with a union to employ exclusively union workmen. But it does not necessarily follow that the union might not be liable to a non-union workman thus prevented from obtaining employment, if any unlawful means were used to induce the employer to enter into the contract for exclusion. “Whatever the contracting parties may do if no one but themselves is concerned, it is evident that, as against the workman, a contract of this kind does not of itself justify interference with his employment, by a third person who made the contract with his employer.” Knowlton, C. J., in Berry v. Donovan, 188 Mass. 353, 357

2 Lord Halsbury, in Allen v. Flood, (1898) A. C. 1, 71, 72.

3 The limit of a plaintiff's right, the extent to which the law will protect it, may be marked out by stating how far a duty is imposed on a defendant to respect that right, to refrain from interfering with it.

+ See the opinion of Cave, J., in Allen v. Flood, [1898] A. C. 1, 29, 34, 36; and also the comments of Prof. Lewis, 42 Am. L. Reg. (N. s.) 149.

ing of this damage. But the law does not regard the damaging violation of this “right" as constituting in itself a substantive cause of action. This is the view advocated by Mr. Cohen in his memorandum accompanying the Report of the Royal Commission on Trade Disputes and Trade Combinations, pp. 24-30. He discusses the question, " Is a person liable for doing any act which, though not in itself an actionable tort, amounts to an interference with or molestation of another person in his trade, business, or employment?” This question he answers in the negative; quoting largely from the opinions of some of the Law Lords in Allen 2. Flood. majority of the Commissioners in their Report, article 66 (4), recommended the passage of an act, “To declare that an individual shall not be liable for doing any act not in itself an actionable tort only on the ground that it is an interference with another person's trade, business, or employment.” 1

It is submitted that the truth lies between these two extremes.

The plaintiff's right in such a case is not a specific right of the kind fully protected against all interference. It is, however, included in the broad general right that a man shall not be intentionally damaged by any one unless there is a justification. The proposition under which the action should be allowed is a wide proposition, not concerned solely or specially with the right to acquire property or the right to be free from interference in the formation of business relations.

General formulas have been laid down which cover torts in general, and in their application are not confined to this particular class of cases.

At Common Law there was a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause or excuse." Bowen, L. J., in Skinner v. Shew.:

1 According to the Solicitors' Journal for Nov. 17, 1906, the Trade Disputes Bill, which had passed the House of Commons and was then before the Lords, contains a clause "which excludes liability in trade disputes where there has been an inducement to a person to commit a breach of contract, or where there has been an interference with some person's business or employment, or his right to dispose of his capital or his labor as he wills."

? See 22 L. Quar. Rev. 118. 3 (1893] 1 Ch. 413, 422.

In Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613, the same judge said: “Now intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that person's property or trade, is actionable if done without just cause or excuse."

This differs from the statement in Skinner v. Shew in two respects. First, the

X, who intentionally causes damage to A, has primâ facie done an injury or wrong to A, and if X can show no legal justification for the damage he has thus intentionally done to A, he is liable to an action by A.Professor A. V. Dicey.?

" It has been considered that, primâ facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape." Holmes, J., in Aikens v. Wisconsin.”

“It is submitted that the discussion would be materially simplified if it were understood that all damage wilfully done to one's neighbor is actionable unless it can be justified or excused.” Sir Frederick Pollock.3

“The wilful causing of damage to another by a positive act, whether by one man alone, or by several acting in concert, and whether by direct action against him or indirectly by inducing a third person to exercise a lawful right, is a tort unless there was just cause for inflicting the damage ; ...' Professor Ames.*

The above statements of Bowen, Dicey, Holmes, Pollock, and Ames all seem to imply that the causing of the damage in question was the object immediately aimed at by the defendant. But they do not necessarily import the doing of damage " for the sake of the harm as an evil in itself, and not merely as a means to some further end legitimately desired.” On the contrary, the desire to cause the harm is entirely consistent with the absence of personal ill will towards the plaintiff, and also with the existence of an ultimate good motive on the part of the defendant. Conceding that damage as such, i.e., because it is harmful or damaging to the plaintiff, is the very object immediately desired, yet it may not be the ultimate end which is sought to be attained.

statement in the Mogul case is, as Sir Frederick Pollock points out (22 L. Quar. Rev. 118),“limited in terms to damage to property or trade.” Second, the statement in the Mogul case seems broad enough to include damages which, though they might have been foreseen as probable incidental results, were not specifically desired by the doer either as an end or as a means to an end.

The second suggestion would also apply to the proposition enunciated by Judge Holmes, in 8 Harv. L. Rev. 9, ". when a responsible defendant seeks to escape from liability for an act which he had notice was likely to cause temporal damage to another, and which has caused such damage in fact, he must show a justification." 1 18 L. Quar. Rev. 4.

195 U. S. 194, 204. 8 Pollock, Torts, 7 ed., 319. See also Sir Frederick Pollock's vigorous criticism of Mr. Cohen's position, “that there is no general rule of law that a person who by some act intentionally does harm to another is primd facie liable to him.” 22 L. Quar. Rev. 118.

4 18 Harv. L. Rev. 412. 6 See Prof. Terry, in 20 L. Quar. Rev. 22.


We think that the law should be held to go as far as the above general statements of Bowen, Dicey, Holmes, and Pollock, and the more specific statement of Professor Ames; and we believe that these propositions are wide enough to cover a large proportion of the so-called “labor cases” which have come before courts in recent years. But (and this is a consideration which may sometimes have been overlooked) none of the above general formulas can be regarded as containing in themselves a complete statement of the law. Like any other general statement of legal doctrine, they do not stand alone. Each is modified and limited as to its operation by the application of other legal doctrines, so that the resultant force of the whole may bring about a result differing from that which would be reached by the application of any one of the doctrines taken by itself alone. Each of the preceding formulas is subject to the implied exception that the damage and the method of producing the damage must be such as the law will notice and will hold actors responsible for. For various reasons the law deems it inexpedient to afford a remedy for some kinds of damage which cannot be sheltered under the maxim De minimis. Certain kinds of conduct and certain methods of exercising socalled "rights" are not regarded as furnishing a cause of action, even though substantial damage results therefrom.

In discussing any specific case the question of primd facie liability should be considered separately from, and prior to, the question of justification. This proposition, so obvious that it seems idle to enunciate it, has sometimes been overlooked, and with unfortunate results. No doubt in this class of cases the great struggle will frequently come on the question of justification; what acts fall within the legal limits of competition; what may justifiably be done in defense of one's own interest. But there can be no rational discussion of justification until we have first settled what sort of conduct requires to be justified and why it so requires. We must first have a clear idea of what constitutes prima facie liability. At present we are liable to have decisions which do not make it plain whether the turning issue was that of the existence or non-existence of primâ facie liability, or the existence or nonexistence of justification. And decisions may sometimes be based on one of these issues which really should have turned on the other.

1 See Bishop, Written Laws, § 118 a.

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