This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether the fact that two persons have made a contract imposes upon third persons the duty to refrain from interfering with it, is a question which is entirely different from the question whether the contract can impose contractual duties upon such third person. As between the parties thereto, a contract is a personal obligation, a right in personam. As between the parties to the contract and third person, is a contract to be regarded as a personal right, a right in rem, which third persons are bound to respect like other property rights? Is the right of a person to make contracts in the future a right which other persons are bound to respect and the violation of which is an actionable wrong? These questions are, of course, questions of tort law, and not of contract law. They are discussed in connection with contracts only to complete the statement of the place of contract in law.1
28 Bates Machine Co. v. Trenton, etc., R. R. Co., 70 N. J. L. 684, 103 Am. St. Rep. 811, 68 Atl. 035.
29 Bates Machine Co. v. Trenton, etc., R. R. Co.. 70 N. J. L. 684, 103 Am. St. Rep. 811, 58 Atl. 935.
30 See Sec. 2046.
31 See Sec. 2412 et seq.
32 Banks v. Eastern Railway & Lumber Co., 46 Wash. 610, 11 L. R. A. (N.S.) 485, 90 Pac. 1048.
It was once said that this was "a subject which is likely to be one of the most important and difficult which will confront the courts during the next quarter of a century."2 Almost a quarter of a century has elapsed since the court made this prediction, and the number of cases which have been presented for judicial decision; together with the amount of legislation on the subject, have justified the prediction. If the court had predicted that the question would be settled and that its fundamental principles would be determined during the next quarter of a century, the prediction would be far from being justified. The importance and magnitude of the conflicting interests, and the difficulty of laying down rules which, on the one hand, will permit free competition, and which, on the other hand, will preserve the rights of parties under their existing contracts, and the right to make contracts in the future, have prevented that harmony of judicial decision which is always so desivable and which is especially desirable in these cases in view of the enormous interests involved.3
The subject of interference with contract must be considered with reference to the nature of the wrongful act and to the necessity of malice. Is any wrongful interference with an existing contract or with the right to make contracts in the future an actionable tort, or is it only cases of interference which are malicious that are actionable?
11t is said, however, that "where one intentionally and maliciously induces another to breach his contract, he thereby becomes himself a party to the breach and liable for damages." Wissmath Packing Co. v. Mississippi River Power Co., 179 Ia. 1309, L. R. A. 1917F, 790, 162 N. W. 846.
On the general subject of interference with contract, see Interference with Contracts and Business in New York, by E. W. Huffcut, 18 Harvard Law Review, 423; Principles of Liability for Interference with Profession or Calling Trade, by Sarat Chandra Basak, 27 Law Quarterly Review, 290, 399, 28 Law Quarterly Review, 52; Interference with Contract Relations, by Ernest Wilson Huffcut, 37 American Law Register (N.S.), 273; Wrongful Interference by Third Parties with the Rights of Employers and Employed, by Wm. L. Hodge, 28 American Law Review, 47, and An Analysis of the Legal Value of a Labor Union Contract, by Frank W. Grinnell, 41 American Law Review, 197.
2Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 231, 40 Am. St. Rep. 319, 21 L. R. A. 337, 55 N. W. 1119.
3 These cases are said to present "an apparent conflict or antimony between two rights that are equally regarded by the law, the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others." Martell v. White, 185 Mass. 255, 102 Am. St. Rep. 341, 64 L. R. A. 260, 69 N. E. 1085.
The nature of the contract as to its subject-matter must also be considered. The contract may be one of employment as a servant in the limited sense of the term, or it may be a contract of employment, but not as a servant in the limited sense of the term, or it may be a contract of any other lawful subject-matter.
In considering this subject, it is also necessary to deal with the nature of the contract as to the time at which "it takes effect, and the time for which it is to continue. The contract may be an existing contract for a definite period of time, or it may be an existing contract for an indefinite period of time, which is in effect subject to termination by either party at will, or the right which is involved may be the right of one party to make contracts in the future with which the adversary party is interfering.
The subject must also be considered with reference to the means which is employed to interfere with the contract. The interference may be by persuading a person' to break a contract or by forcing him to break it, in which may be included making it impossible for him to perform it.
The subject must also be considered with reference to the number of persons who interfere with the performance of an existing contract, or with the formation of future contracts. For some purposes, interference by a single individual stands on a different footing from interference by a large number of persons.