Restat 2d of Torts, § 767

• Restatement of the Law, Second, Torts
• Division 9- Interference with Advantageous Economic Relations
• Chapter 37- Interference with Contract or Prospective Contractual Relation
• § 767 Factors in Determining Whether Interference Is Improper

In determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:

(a)  the nature of the actor's conduct,

(b)  the actor's motive,

(c)  the interests of the other with which the actor's conduct interferes,

(d)  the interests sought to be advanced by the actor,

(e)  the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

(f)  the proximity or remoteness of the actor's conduct to the interference and

(g)  the relations between the parties.

Comment:

a.  Significance of section.  The tort of interference with existing or prospective contractual relations includes interference with an existing contract either by causing a third party not to perform his contract with the plaintiff (as in § 766) or by preventing the plaintiff from performing his own contract or making that performance more expensive or burdensome (as in § 766A); it also includes interference with prospective contractual relationships (as in § 766B). In each of these forms there is a requirement that the interference be both intentional and improper. See the Special Note to this Chapter, treating the basis of liability for the tort of interference and the terminology used in this Chapter, located immediately preceding § 766.

This Section applies to each form of the tort as stated in §§ 766-766B and indicates the factors to be taken into consideration in determining whether the interference is improper or not, through an appraisal of the several factors and an evaluation of their comparative weight. In the three forms of the tort, the weight carried by these factors may vary considerably and the determination of whether the interference is improper may also vary; but the listed factors are nevertheless important in each form. It is in the application of this Section that the most frequent and difficult problems of the tort of interference with a contract or prospective contractual relation arise.

Section 768, following this Section, deals specifically with the question of whether competition is a proper or improper interference with contractual relations, either existing or prospective. Sections 769-773 deal with other special situations in which application of the factors enumerated in this Section have produced more clearly identifiable decisional patterns. The specific applications in these Sections therefore supplant the generalization expressed in this Section.

b.  Privilege to interfere, or interference not improper.  Unlike other intentional torts such as intentional injury to person or property, or defamation, this branch of tort law has not developed a crystallized set of definite rules as to the existence or nonexistence of a privilege to act in the manner stated in §§ 766, 766A or 766B. Because of this fact, this Section is expressed in terms of whether the interference is improper or not, rather than in terms of whether there was a specific privilege to act in the manner specified. The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. This Section states the important factors to be weighed against each other and balanced in arriving at a judgment; but it does not exhaust the list of possible factors. The comments in the Section deal with the significance of each of the listed factors.

Since the determination of whether an interference is improper is under the particular circumstances, it is an evaluation of these factors for the precise facts of the case before the court; and, as in the determination of whether conduct is negligent, it is usually not controlling in another factual situation. On the other hand, factual patterns develop and judicial decisions regarding them also develop patterns for holdings that begin to evolve crystallized privileges or rules defining conduct that is not improper. The rules stated in §§ 768-774 shows the results of the balancing process in some specific situations that have been the subject of judicial decision; but they do not constitute an exhaustive list of situations in which it has been determined that an intentional interference with contractual relations is not improper.

Ambiguity as to the scope of the privileges available for the tort of intentional interference with an existing or prospective contractual relation has meant that at least some of the factors listed in this Section are sometimes treated as going to the culpability of the actor's conduct in the beginning, rather than to the determination of whether his conduct was justifiable as an affirmative defense. This bears on the issues of whose responsibility it is to raise the question of culpability or justification -- that is, whether the interference was improper or not -- in the pleadings and who has the burden of proof in the sense of the risk of nonpersuasion. Justification is generally treated as a matter of defense, but not always in the tort of interference with contractual relations. Thus a court that calls the tort "malicious interference" and defines this as interference without justification. often decides that it is a part of the plaintiff's case to plead and prove lack of justification. (See § 766, Comment s).  A plaintiff is therefore well advised, when the matter is unclear, to include in suitable form in his complaint the allegation that the interference is improper and not justified. On the other hand, even though the particular matter may be held to be one of defense, the complaint may itself show that a defense is applicable and thus not stand against a demurrer or motion to dismiss.

Comment on Clause (a):

c.  Nature of actor's conduct.  The nature of the actor's conduct is a chief factor in determining whether the conduct is improper or not, despite its harm to the other person. The variety of means by which the actor may cause the harm are stated in § 766, Comments k to n.  Some of them, like fraud and physical violence, are tortious to the person immediately affected by them; others, like persuasion and offers of benefits, are not tortious to him. Under the same circumstances interference by some means is not improper while interference by other means is improper; and, likewise, the same means may be permissible under some circumstances while wrongful in others. The issue is not simply whether the actor is justified in causing the harm, but rather whether he is justified in causing it in the manner in which he does cause it. The propriety of the means is not, however, determined as a separate issue unrelated to the other factors. On the contrary, the propriety is determined in the light of all the factors present. Thus physical violence, fraudulent misrepresentation and threats of illegal conduct are ordinarily wrongful means and subject their user to liability even though he is free to accomplish the same result by more suitable means. A, C's competitor for B's business, may justifiably induce B by permissible means not to buy from C (see § 768); he is not justified in doing so by the predatory means stated above. Yet even these means are not always forbidden. The relation between the actor and the person induced, and the object sought to be accomplished by the actor, may be such as to warrant even physical violence. For example, C operates a gambling den in the rear room of his ice cream parlor. B's parent, A, having the privilege of corporal punishment, may exercise that privilege in order to cause B not to patronize C's ice cream parlor. This may also be the case between an institution and its inmates. The nature of the means is, however, only one factor in determining whether the interference is improper. Under some circumstances the interference is improper even though innocent means are employed.

Physical violence.  Threats of physical violence were the means employed in the very early instances of liability for intentional interference with economic relations; and interference by physical violence is ordinarily improper. The clearest example is the case in which the violence exerted or threatened is violence to the person sought to be induced and is actionable by him. The actor is subject to liability also when the third person is threatened with physical violence to his children or other persons in whom he is interested, or to property in which he is interested. And the actor is subject to liability whether the violence is actually exerted or is threatened imminently or in the future. The issue is simply whether the actor induces the third person's conduct or prevents the injured party's performance of his own contract by putting him in fear of physical violence.

Misrepresentations.  Fraudulent misrepresentations are also ordinarily a wrongful means of interference and make an interference improper. A representation is fraudulent when, to the knowledge or belief of its utterer, it is false in the sense in which it is intended to be understood by its recipient. (See § 527). In some circumstances one who is liable to another for intentional interference with economic relations by inducing a third person by fraudulent misrepresentation not to do business with the other may also be liable under other rules of the law of torts. Thus if the representation is also defamatory of the other, the actor may be liable under the rules relating to defamation. (See §§ 558-581). Or, if the representation disparages the other's goods, the actor may be liable under the rules relating to injurious falsehood. (See §§ 624-652). Or, if the representation seeks to pass off the actor's goods for those of the other, the actor may be liable under the rules relating to fraudulent marketing. Or the misrepresentation may subject the actor to liability for false advertising. The tort of intentional interference thus overlaps other torts. But it is not coincident with them. One may be subject to liability for intentional interference even when his fraudulent representation is not of such a character as to subject him to liability for the other torts. And, on the other hand, one may be liable for the other torts as for a defamatory statement negligently believed by him to be true, without being liable for intentional interference because of his good faith.

Prosecution of civil suits.  In a very early instance of liability for intentional interference, the means of inducement employed were threats of "mayhem and suits," and both types of threats were deemed tortious. Litigation and the threat of litigation are powerful weapons. When wrongfully instituted, litigation entails harmful consequences to the public interest in judicial administration as well as to the actor's adversaries. The use of these weapons of inducement is ordinarily wrongful if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication. (See §§ 674-681B). A typical example of this situation is the case in which the actor threatens the other's prospective customers with suit for the infringement of his patent and either does not believe in the merit of his claim or is determined not to risk an unfavorable judgment and to rely for protection upon the force of his threats and harassment.

Criminal suits.  Threats of criminal prosecutions, even more than threats of civil suits, enlist the powers of government on the side of the actor and prejudice the public interest in public administration as well as unduly influence the person threatened. (See §§ 653-673). Causing or threatening to cause, in bad faith, the institution of criminal prosecution is ordinarily a wrongful method of interference under the rules stated in §§ 766-766B.

Unlawful conduct.  Conduct specifically in violation of statutory provisions or contrary to established public policy may for that reason make an interference improper. This may be true, for example, of conduct that is in violation of antitrust provisions or is in restraint of trade or of conduct that is in violation of statutes, regulations, or judicial or administrative holdings regarding labor relations.

Economic pressure.  Economic pressure of various types is a common means of inducing persons not to deal with another, as when A refuses to deal with B if B enters into or continues a relation with C, or when A increases his prices to B or induces D not to deal with B on the same condition. Or the pressure may consist of the refusal to admit B to membership into a trade association or a professional organization, as a medical or legal association. The question whether this pressure is proper is answered in the light of the circumstances in which it is exerted, the object sought to be accomplished by the actor, the degree of coercion involved, the extent of the harm that it threatens, the effect upon the neutral parties drawn into the situation, the effects upon competition, and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor's objective.

Business ethics and customs.  Violation of recognized ethical codes for a particular area of business activity or of established customs or practices regarding disapproved actions or methods may also be significant in evaluating the nature of the actor's conduct as a factor in determining whether his interference with the plaintiff's contractual relations was improper or not.

Other aspects of actor's conduct.  It is often important whether the defendant was acting alone or in concert with others to accomplish his purpose. In a case in which other factors are otherwise evenly balanced, less censurable aspects of the actor's conduct may sometimes tip the scales. Thus the manner of presenting an inducement to the third party may be significant. There is an easily recognized difference between (1) A's merely routine mailing to B of an offer to sell merchandise at a reduced price, even though A knows that B is bound by an existing contract to purchase the goods from C, and (2) A's approaching B in person and offering expressly to sell the merchandise at such a low price that B can "pay any costs of getting out of his contract with C and still profit." The question of who was the moving party in the inducement may also be important. A's active solicitation of B's business is more likely to make his interference improper than his mere response to an inquiry from B.

Comment on Clause (b):

d.  The actor's motive.  Since interference with contractual relations is an intentional tort, it is required that in any action based upon §§ 766, 766A or 766B the injured party must show that the interference with his contractual relations was either desired by the actor or known by him to be a substantially certain result of his conduct. (See § 8A). Intent alone, however, may not be sufficient to make the interference improper, especially when it is supplied by the actor's knowledge that the interference was a necessary consequence of his conduct rather than by his desire to bring it about. In determining whether the interference is improper, it may become very important to ascertain whether the actor was motivated, in whole or in part, by a desire to interfere with the other's contractual relations. If this was the sole motive the interference is almost certain to be held improper. A motive to injure another or to vent one's ill will on him serves no socially useful purpose.

The desire to interfere with the other's contractual relations need not, however, be the sole motive. If it is the primary motive it may carry substantial weight in the balancing process and even if it is only a casual motive it may still be significant in some circumstances. On the other hand, if there is no desire at all to accomplish the interference and it is brought about only as a necessary consequence of the conduct of the actor engaged in for an entirely different purpose, his knowledge of this makes the interference intentional, but the factor of motive carries little weight toward producing a determination that the interference was improper.

Motive as a factor is often closely interwoven with the other factors listed in this Section, so that they cannot be easily separated. There is obviously a very intimate relation between the factors of motive and of the interests that the actor is trying to promote by his conduct. So close is the relationship that the two factors might well be merged into a single one. The basis for the separation in this Section is that the factor of motive is concerned with the issue of whether the actor desired to bring about the interference as the sole or a partial reason for his conduct, while the factor of the actor's interests is concerned with the individual and social value or significance of any interests that he is seeking to promote.

The relation of the factor of motive to that of the nature of the actor's conduct is an illustration of the interplay between factors in reaching a determination of whether the actor's conduct was improper. If the conduct is independently wrongful -- as, for example, if it is illegal because it is in restraint of trade or if it is tortious toward the third person whose conduct is influenced -- the desire to interfere with the other's contractual relations may be less essential to a holding that the interference is improper. On the other hand, if the means used by the actor are innocent or less blameworthy, the desire to accomplish the interference may be more essential to a holding that the interference is improper.

A similar interplay exists between the factor of motive and that of the proximity of the actor's conduct to the actual interference. If the relationship is direct and immediate, as when A induces B to sell a particular article to him, knowing that B is under contract to sell it to C, it makes no difference that A did not desire to have the contract broken between B and C or that he is quite sorry that this was a necessary consequence of his action. On the other hand, if in the same situation A also knows that C has contracted to sell the chattel to D and that his conduct will also prevent that contract from being carried out, this result is so consequential and indirect that a motive or purpose to accomplish that interference may be necessary to a finding that the interference was improper.

Comment on Clause (c):

e.  The interests of the other with which the actor's conduct interferes.  Some contractual interests receive greater protection than others. Thus, depending upon the relative significance of the other factors, the actor's conduct in interfering with the other's prospective contractual relations with a third party may be held to be not improper, although his interference would be improper if it involved persuading the third party to commit a breach of an existing contract with the other. (See, for example, § 768). The result in the latter case is due in part to the greater definiteness of the other's expectancy and his stronger claim to security for it and in part to the lesser social utility of the actor's conduct. Again, the fact that a contract violates public policy, as, for example, a contract in unreasonable restraint of trade, or that its performance will enable the party complaining of the interference to maintain a condition that shocks the public conscience (see § 774), may justify an inducement of breach that, in the absence of this fact, would be improper. Even with reference to contracts not subject to these objections, however, it may be found to be not improper to induce breach when the inducement is justified by the other factors stated in this Section. (See, for example, § 770).

Comment on Clause (d):

f.  The actor's interest.  The correlative of the interest with which the actor interferes (see Comment e) is the interest that his conduct is intended to promote. Both are important in determining whether the interference is improper. And both are to be appraised in the light of the social interests that would be advanced by their protection.

Usually the actor's interest will be economic, seeking to acquire business for himself. An interest of this type is important and will normally prevail over a similar interest of the other if the actor does not use wrongful means. (See § 768). If the interest of the other has been already consolidated into the binding legal obligation of a contract, however, that interest will normally outweigh the actor's own interest in taking that established right from him. Of course, the interest in gratifying one's feeling of ill will toward another carries no weight. Some interests of the actor that do carry weight are depicted in §§ 770-773.

In some cases the actor may be seeking to promote not solely an interest of his own but a public interest. The actor may believe that certain practices used in another's business are prejudicial to the public interest, as, for example, his maintenance of a gambling den in the rear room of his cigar store and in plain sight of his patrons, or his despoiling the environment by polluting a stream or strip-mining an area without restoring the natural conditions, or his racial or sexual discrimination in his employment policy. If the actor causes a third person not to perform a contract or not to enter into or continue a contractual relation with the other in order to protect the public interest affected by these practices, relevant questions in determining whether his interference is improper are: whether the practices are actually being used by the other, whether the actor actually believes that the practices are prejudicial to the public interest, whether his belief is reasonable, whether he is acting in good faith for the protection of the public interest, whether the contractual relation involved is incident or foreign to the continuance of the practices and whether the actor employs wrongful means to accomplish the result.

Comment on Clause (e):

g.  The social interests.  Appraisal of the private interests of the persons involved may lead to a stalemate unless the appraisal is enlightened by a consideration of the social utility of these interests. Moreover, the rules stated in §§ 766-766B deal with situations affecting both the existence and the plan of competitive enterprise. The social interest in this enterprise may frequently require the sacrifice of the claims of the individuals to freedom from interference with their pursuit of gain. Thus it is thought that the social interest in competition would be unduly prejudiced if one were to be prohibited from in any manner persuading a competitor's prospective customers not to deal with him. On the other hand, both social and private interests concur in the determination that persuasion only by suitable means is permissible, that predatory means like violence and fraud are neither necessary nor desirable incidents of competition. (See further § 768).

Comment on Clause (f):

h.  Proximity or remoteness of actor's conduct to interference.  One who induces a third person not to perform his contract with another interferes directly with the other's contractual relation. The interference is an immediate consequence of the conduct, and the other factors need not play as important a role in the determination that the actor's interference was improper. The actor's conduct need not be predatory or independently tortious, for example, and mere knowledge that this consequence is substantially certain to result may be sufficient.

If, however, A induces B to sell certain goods to him and thereby causes him not to perform his contract to supply the goods to C, this may also have the effect of preventing C from performing his contractual obligations to supply them to D and E. C's failure to perform his contracts is a much more indirect and remote consequence of A's conduct than B's breach of his contract with C, even assuming that A was aware of all of the contractual obligations and the interference can be called intentional. This remoteness conduces toward a finding that the interference was not improper. The weight of this factor, however, may be controverted by the factor of motive if it was the actor's primary purpose to interfere with C's obligation to D and E, or perhaps by the factor of the actor's conduct if that conduct was inherently unlawful or independently tortious. Similar results follow in cases in which the person whose contract was the subject of the initial interference has contracts of his own with his employees, his subcontractors or his suppliers, which he is now unable to perform.

Recovery for A's interference with B's obtaining performance of a contract by C by preventing B from performing himself and thus becoming entitled to C's performance may also be affected by this factor. The injury to B is his failure to obtain the benefit of C's performance. That consequence is an indirect one and if it was not a part of A's motivation but a mere incidental result of his conduct and if that conduct was not independently tortious or unlawful, the interference will ordinarily be held not to be improper.

Comment on Clause (g):

i.  Relations between the parties.  The relation between the parties is often an important factor in determining whether an interference is proper or improper. In a case where A is the actor, B is the injured party and C is the third party influenced by A's conduct, the significant relationship may be between any two of the three parties. Thus A and B may be competitors, and A's conduct in inducing C not to deal with B may be proper, though it would have been improper if he had not been a competitor. (See § 768). Or, if A is C's business advisor, it is proper for him to advise C, in good faith and within the scope of C's request for advice, that it would be to his financial advantage to break his contract with B, while it would be improper if he were a volunteer. (See § 772). Again, it is important whether the relationship between B and C is that of a prospective contract, an existing contract or a contract terminable at will. (See § 768).

j.  Determination of whether the actor's conduct is improper or not.  The weighing process described in this Section does not necessarily reach the same result in regard to each of the three forms of interference with business relations stated in §§ 766, 766A and 766B. As indicated in Comment e, for example, greater protection is given to the interest in an existing contract than to the interest in acquiring prospective contractual relations, and as a result permissible interference is given a broader scope in the latter instance. (See § 768). In some situations the process of weighing the conflicting factors set forth in this Section has already been performed by the courts, and incipient privileges and rules defining conduct as not improper are developing. When this has been accomplished and the scope of the more or less crystallized rule or privilege has been indicated by the decisions, the responsibility in the particular case is simply to apply it to the facts involved; and there is no need to go through the balancing process afresh. Some of the situations in which this development has occurred are stated in §§ 769-773.

When no crystallized pattern is applicable, however, the balancing process must be followed for the individual case. Though consideration must be given to the factors stated in this Section, generalizations utilizing a standard are sometimes offered. Thus, it has been suggested that the real question is whether the actor's conduct was fair and reasonable under the circumstances. Recognized standards of business ethics and business customs and practices are pertinent, and consideration is given to concepts of fair play and whether the defendant's interference is not "sanctioned by the 'rules of the game.'" The determination is whether the actor's interference is "improper" or not. But an attempt to apply these broad, general standards is materially helped by breaking the conflicting elements into the factors stated in this Section.

k.  Burden of proof.  As indicated previously, particularly in the Special Note to this Chapter, immediately preceding § 766, the intentional tort of interference with contractual relations differs from most other intentional torts, which have rather clearly defined requirements for establishing a prima facie case and for setting up an affirmative defense based upon a privilege. This tort has not fully developed to this stage and some of the factors stated in this Section may be significant in ascertaining whether the actor's conduct is to be regarded as initially wrongful or culpable in nature. This tort is sometimes treated like the tort of negligence, with the result that it is a part of the plaintiff's case to show all of the factors making the defendant's interference improper. This is especially true in jurisdictions where the courts speak of malicious interference and define it as meaning intentional interference without justification. (See Comment b).

The result is that there is little consensus on who has the burden of raising the issue of whether the interference was improper or not and subsequently of proving that issue; and it can not be predicted with accuracy what rule will ultimately develop. Instead of laying down a categoric rule for one position or the other, therefore, it seems appropriate to draw a more particularized line depending upon whether the precise matter goes more specially to the culpability of the actor's conduct in general or to its justification under the specific facts. (Cf. § 870). Thus the question of whether the actor was competing with the other for the prospective business of a third person might be treated as a matter of culpability (cf. § 768), for which the burden of pleading and proving would be on the plaintiff, while the question of whether there was a special relation existing between the actor and the third party making it appropriate for the actor to advise freely with the third party might be treated as a matter of justification for which the burden would be on the defendant. (Cf. § 770).

l.  Function of court and jury.  The jury determines whether the defendant's interference with the plaintiff's advantageous relation was intentional or not. But the cases fail to indicate clearly whether the judge or the jury makes the decision of whether the conduct was improper, or whether the function varies, depending upon the circumstances. In the case of most intentional torts, crystallized privileges have been established; and the court determines the circumstances under which a privilege exists and the jury determines what the actual circumstances are.

A similar approach is usually followed for the tort of interference with contractual relations under circumstances in which a more or less established privilege has been formulated, as indicated, for example, in §§ 770-773. Even under certain other circumstances recurrent factual patterns may have developed, reflecting identifiable standards of business ethics or recognized community customs as to acceptable conduct and leading the court to feel that the determination of whether the interference was improper should be made as a matter of law, similar to negligence per se. (Cf. § 285, Comment e).  The analogy to negligence continues to hold in the situations where no recognized privilege has been formulated. Here, as with negligence, when there is room for different views, the determination of whether the interference was improper or not is ordinarily left to the jury, to obtain its common feel for the state of community mores and for the manner in which they would operate upon the facts in question.

The Section has been changed by posing the issue on whether the interference is improper rather than on whether there is a privilege, and by adding clauses (b) and (f) to the list of factors.

For good general treatments of the subject-matter of this Section, see Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631 (1941); Continental Research, Inc. v. Cruttenden, Podesta & Miller, 222 F.Supp. 190 (D.Minn. 1963); M & M Rental Tools, Inc. v. Melchem, Inc., 94 N.M. 449, 612 P.2d 241 (App.1980); Cincinnati Bengals, Inc. v. Bergey, 453 F.Supp. 129 (S.D.Ohio 1974); Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978); Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148 (1964).

Clause (a):  The actor's conduct. Physical violence, threats and intimidation. See Evenson v. Spaulding, 150 F. 517 (9th Cir. 1907) (intimidating customers); South Central Livestock Dealers Inc. v. Security State Bank, 551 F.2d 1346 (5th Cir. 1977) (seizures of property); Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908) (labor violence); Williams v. Maloof, 223 Ga. 640, 157 S.E.2d 479 (1967) (picketing, physical force); Gilly v. Hirsh, 122 La. 966, 48 So. 422 (1909) (intimidating customers); Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896) (labor violence); Rouse Philadelphia, Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 417 A.2d 1248 (1980); Garrett v. Taylor, Cro.Jac. 567, 79 Eng.Rep. 485 (1621) (threat of mayhem); Tarleton v. McGawley, Peake, N. P. 205, 170 Eng.Rep. 153 (1793) (shooting).

Misrepresentation. See Gold v. Los Angeles Democratic League, 49 Cal.App.3d 365, 122 Cal.Rptr. 732 (1975); Skene v. Carayanis, 103 Conn. 708, 131 A. 497 (1926); Diver v. Miller, 4 W.W. Harr. (Del.) 207, 148 A. 291 (1929); Johnson v. Gustafson, 201 Minn. 629, 277 N.W. 252 (1938); Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964); Greene v. Button, 2 Cr.M. & R. 707, 150 Eng.Rep. 299 (1835).

Threats of civil suits. See Maytag Co. v. Meadows Mfg. Co., 35 F.2d 403 (7th Cir. 1929); Emack v. Kane, 34 F. 46 (N.D. Ill.1888); Downes v. Culbertson, 153 Misc. 14, 275 N.Y.S. 233 (1934); Gresh v. Potter McCune Co., 235 Pa.Super. 537, 344 A.2d 540 (1975).

Threats of criminal prosecution. See American Mercury v. Chase, 13 F.2d 224 (D.Mass. 1926); cf. Pratt Food Co. v. Bird, 148 Mich. 631, 112 N.W. 701 (1907).

Defamation. See Chambers v. Probst, 145 Ky. 381, 140 S.W. 572 (1911); Jenson v. Olson, 273 Minn. 390, 141 N.W.2d 488 (1966); Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775 (1975); Max v. Kahn, 91 N.J.L. 170, 102 A. 737 (1917); Woody v. Brush, 178 A.D. 698, 165 N.Y.S. 867 (1917); Stebbins v. Edwards, 101 Okla. 188, 224 P. 714 (1924).

Effect of privileged defamation. Brody v. Montalbano, 87 Cal.App.3d 725, 151 Cal.Rptr. 206 (1978), cert. denied, 444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57 (1979); Gray v. Central Bank & Trust Co., 562 S.W.2d 656 (Ky. App.1978); Beane v. McMullen, 265 Md. 585, 291 A.2d 37 (1972).

Unlawful conduct. See Mobile Mechanical Contractors Ass'n v. Carlough, 456 F.Supp. 310 (S.D. Ala.1978); cf. Ulan v. Lucas, 18 Ariz.App. 129, 500 P.2d 914 (1972).

Economic pressure. See Johnson v. Warnaco, Inc., 426 F.Supp. 44 (S.D.Miss.1976) (sale and driving into bankruptcy of plaintiff's subsidiary, plaintiff's lessee); Rothermel v. International Paper Co., 163 N.J.Super. 235, 394 A.2d 860 (1978) (refusal to deal); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); Jackson v. Travelers Ins. Co., 403 F.Supp. 986 (M.D.Tenn. 1975); Cherberg v. People's Nat'l Bank of Washington, 88 Wash.2d 595, 564 P.2d 1137 (1977) (defendant's acts breached separate contract with plaintiff).

Business ethics and customs. See Herron v. State Farm Mutual Ins. Co., 56 Cal.2d 202, 14 Cal. Rptr. 294, 363 P.2d 310 (1961) (rules of Nat'l Conf. Comm. on Adjusters); Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964) (real estate broker situation); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978) (A.B.A. Code of Professional Responsibility).

Other aspects of actor's conduct. Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952 (5th Cir. 1975) (surreptitious negotiation and agreement to indemnify third party from claim); Middleton v. Wallichs Music & Entertainment Co., 24 Ariz.App. 180, 536 P.2d 1072 (1975) (third party solicited contract); Buckaloo v. Johnson, 14 Cal.3d 815, 122 Cal.Rptr. 745, 537 P.2d 865 (1975) ("devious dealings"); Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148 (1964) (giving advice officiously).

Clause (b):  The actor's motive. See: Sidney Blumenthal & Co. v. United States, 30 F.2d 247 (2d Cir. 1929); Hennessey v. National Collegiate Athletic Ass'n, 564 F.2d 1136 (5th Cir. 1977); Byars v. Baptist Medical Centers, Inc., 361 So.2d 350 (Ala.1978); Richardson v. La Rancherita La Jolla, Inc., 98 Cal.App.3d 73, 159 Cal.Rptr. 285 (1979); Kassman v. American Univ., 178 App.D.C. 263, 546 F.2d 1029 (1976); Nizzo v. Amoco Oil Co., 333 So.2d 491 (Fla.App.1976); London Guarantee & Acc. Co. v. Horn, 206 Ill. 493, 69 N.E. 526 (1903); Farmers Coop. Elevator, Inc. v. State Bank, 236 N.W.2d 674 (Iowa 1975); Beane v. McMullen, 265 Md. 585, 291 A.2d 37 (1972); Pino v. Protection Maritime Ins. Co., 454 F.Supp. 210 (D.Mass. 1978), aff'd in pertinent part, 599 F.2d 10 (1st Cir. 1979); Johnson v. Aetna Life Ins. Co., 158 Wis. 56, 147 N.W. 32 (1914); Continental Research, Inc. v. Cruttenden, Podesta & Miller, 222 F. Supp. 190 (D.Minn.1963); Tuttle v. Buck, 107 Minn. 145, 119 N.W. 946 (1909); Russell v. Croteau, 98 N.H. 68, 94 A.2d 376 (1953); Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964); Warschauser v. Brooklyn Furn. Co., 159 A.D. 81, 144 N.Y.S. 257 (1913); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978); Hutton v. Watters, 132 Tenn. 527, 179 S.W. 134 (1915); Cherberg v. Peoples Nat'l Bank of Washington, 88 Wash.2d 595, 564 P.2d 1137 (1977).

Clause (c):  Plaintiff's interests. See Fury Imports Inc. v. Shakespeare Co., 554 F.2d 1376 (5th Cir. 1977); Herron v. State Farm Mutual Ins. Co., 56 Cal.2d 202, 14 Cal.Rptr. 294, 363 P.2d 310 (1961); Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 86 Cal.Rptr. 885 (1970); Cincinnati Bengals, Inc. v. Bergey, 453 F.Supp. 129 (S.D.Ohio 1974).

Clause (d):  The defendant's interest. See Fury Imports Inc. v. Shakespeare Co., 554 F.2d 1376 (5th Cir. 1977); Salomon v. Crown Life Ins. Co., 536 F.2d 1233 (8th Cir. 1976), cert. denied 429 U.S. 961, 97 S.Ct. 387, 50 L. Ed.2d 329 (1976); Leo Spear Constr. Co. v. Fidelity & Cas. Co. of N.Y., 446 F.2d 439 (2d Cir. 1970); Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 86 Cal.Rptr. 885 (1976); Lewin v. St. Joseph Hospital of Orange, 82 Cal.App.3d 368, 146 Cal.Rptr. 892 (1978); Bridges v. Cal-Pacific Leasing Co., 16 Cal.App.3d 118, 93 Cal.Rptr. 796 (1971); Bledsoe v. Watson, 30 Cal.App.3d 105, 106 Cal.Rptr. 197 (1973); Nitzberg v. Zalesky, 370 So.2d 389 (Fla. App.1979); Beane v. McMullen, 265 Md. 585, 291 A.2d 37 (1972); Standard Fruit & Steamship Co. v. Putnam, 290 So.2d 612 (Miss. 1974); Quinlivan v. Brown Oil Co., 96 Mont. 147, 29 P. 374 (1934); Williamson, Picket, Cross, Inc. v. 400 Park Avenue Co., 63 A.D.2d 880, 405 N.Y.S. 709 (1978), aff'd, 47 N.Y.2d 769, 417 N.Y.S.2d 460, 391 N.E.2d 296 (1979); Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); Cincinnati Bengals, Inc. v. Bergey, 453 F.Supp. 129 (S.D. Ohio 1976); Davis v. Lewis, 487 S.W.2d 411 (Tex.Civ.App.1972); Brimelow v. Casson, [1924] 1 Ch. 302.

Clause (e):  Social interests. See New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 270, 82 L.Ed. 524 (1938); Edwards v. Travelers Ins. of Hartford, Conn., 563 F.2d 105 (5th Cir. 1977); Scott v. McDonnell-Douglas Corp., 37 Cal. App.3d 277, 112 Cal.Rptr. 609 (1974); Bledsoe v. Watson, 30 Cal.App.3d 105, 106 Cal.Rptr. 197 (1973); Cal-Medicon v. Los Angeles County Med. Ass'n, 20 Cal. App.3d 148, 97 Cal.Rptr. 530 (1971); Masoni v. Board of Trade of San Francisco, 119 Cal. App.2d 738, 260 P.2d 205 (1953); Middlesex Concrete, etc. v. Carteret Industrial Ass'n, 37 N.J. 507, 181 A.2d 774 (1962); Rudoff v. Huntington Symphony Orchestra, 91 Misc.2d 264, 397 N.Y. S.2d 863 (1977); GMC, Inc. v. Christofolli, 55 Ohio App.2d 6, 381 N.E.2d 217, 10 O.O.3d 18 (1978); Cincinnati Bengals, Inc. v. Bergey, 453 F.Supp. 129 (S.D. Ohio 1974); Harris v. Thomas, 217 S.W. 1068 (Tex.Civ.App. 1924); Brimelow v. Casson, [1924] 1 Ch. 302.

Clause (f):  Closeness of defendant's conduct to the interference. See Lowell v. Mother's Cake & Cookie Co., 79 Cal.App.3d 13, 144 Cal.Rptr. 664 (1978); Bowl-Mor Co., Inc. v. Brunswick Corp., 297 A.2d 61 (Del.Ch.1972), appeal dismissed, 297 A.2d 67 (Del.1972); Nitzberg v. Zalesky, 370 So.2d 389 (Fla.App.1979); Continental Research Inc. v. Cruttenden, Podesta & Miller, 222 F. Supp. 190 (D.Minn.1963); Tamposi Assocs., Inc. v. Starmarket Co.,    N.H.   , 406 A.2d 132 (1979); Rothermel v. International Paper Co., 163 N.J.Super. 235, 394 A.2d 860 (1978); Williamson, Picket, Gross, Inc. v. 400 Park Avenue Co., 63 A.D.2d 880, 405 N.Y.S.2d 709 (1978), aff'd, 47 N.Y.2d 769, 427 N.Y.S.2d 460, 391 N.E.2d 296 (1979); Phez Co. v. Salem Fruit Union, 103 Or. 514, 205 P. 970 (1922); Northway Decking & Sheet Metal Corp. v. Inland-Ryerson Constr. Co., 426 F.Supp. 417 (D.R.I.1977).

Clause (g):  Relations between the parties. See Hennessey v. National Collegiate Athletic Ass'n, 564 F.2d 1136 (5th Cir. 1977); Cal-Medicon v. Los Angeles County Med. Ass'n, 20 Cal. App.3d 148, 97 Cal.Rptr. 530 (1970); Kassman v. American Univ., 546 F.2d 1029 (D.C.Cir. 1976); Swager v. Couri, 77 Ill.2d 173, 395 N.E.2d 921 (1979); Pino v. Protection Maritime Ins. Co., 454 F.Supp. 210 (D.Mass. 1978); Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964); Frederick Chusid & Co. v. Marshall Leeman & Co., 279 F.Supp. 913 (S.D.N.Y.1970); Fincke v. Phoenix Mut. L. Ins. Co., 448 F.Supp. 187 (W.D.Pa.1978); Bear v. Mennonite Church, 462 Pa. 330, 341 A.2d 105 (1975) ("shunning").

Comment j:  Standards for determining whether the defendant's interference is improper.

See Sustick v. Slatina, 48 N.J. Super. 134, 137 A.2d 54 (1957) (ultimate question is whether the defendant's conduct was "both injurious and transgressive of generally accepted standards of common morality or of law," whether it was "sanctioned by the rules of the game," and constituted "right and just dealing") [from 2 Harper & James, Torts 510].

This language is often repeated by the New Jersey courts. See, e.g., Association Group Life, Inc. v. Catholic War Veterans, 120 N. J.Super. 85, 293 A.2d 382 (1972).

See also Scott v. McDonnell-Douglas Corp., 37 Cal.App.3d 277, 112 Cal.Rptr 609 (1974) ("balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interests interfered with"); Freed v. Manchester Services, Inc., 165 Cal.App.2d 186, 331 P.2d 689 (1958) ("whether it is of greater moment to society to protect the defendant in the invading activities than it is to protect and guard the plaintiff's interest from such invasion").

See also Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964) ("sharp dealing or overreaching or other conduct below the behavior of fair men similarly situated"); repeated in Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952 (5th Cir. 1975).

And see Imperial Ice Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631 (1941); Richardson v. La Rancherita La Jolla, 98 Cal.App. 3d 73, 159 Cal.Rptr. 285 (1979); Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365 (1978); Glenn v. Point Park College, 441 Pa. 474, 272 A. 2d 895 (1971).

Comment k:  Burden of proof. When speaking in terms of justification, a majority of the courts place the burden of proof on the defendant. Thompson v. Allstate Ins. Co., 476 F.2d 746 (5th Cir. 1973); Lowell v. Mother's Cake & Cookie Co., 79 Cal.App.3d 13, 144 Cal.Rptr. 664 (1978); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Serv. Co., 169 Conn. 407, 363 A.2d 86 (1975); Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284 (D.C.App.1977); Barlow v. International Harvester Co., 95 Idaho 881, 522 P.2d 1102 (1978); Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148 (1969).

Others place the burden on the plaintiff, especially when they speak of malicious interference. Nitzberg v. Zalesky, 370 So.2d 389 (Fla.App.1979); Monarch Industrial Towel & Uniform Rental, Inc. v. Model Coverall Service, Inc.,    Ind.App.   , 381 N.E. 2d 1098 (1978); M & M Rental Tools, Inc. v. Melchem, Inc., 94 N.M. 449, 612 P.2d 241 (App. 1980); Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971).

Still others suggest that it may vary, depending on the factual situation. Old Colony Donuts v. American Broadcasting Companies, Inc., 368 F.Supp. 785 (D. Mass.1974); Johnson v. Radde, 293 Minn. 409, 196 N.W.2d 478 (1972).

Comment l:  Court and jury: When there is not a crystallized determination of whether interference is improper or not, the determination is usually left to the jury. South Central Livestock Dealers, Inc. v. Security State Bank, 551 F.2d 1346 (5th Cir. 1977); Thompson v. Allstate Ins. Co., 476 F.2d 746 (5th Cir. 1973); Lowell v. Mother's Cake & Cookie Co., 79 Cal.App.3d 13, 144 Cal.Rptr. 664 (1978); Association Group Life Inc. v. Catholic War Veterans, 120 N.J.Super. 85, 293 A.2d 382 (1972); General Beverage Sales Co. -- Oshkosh v. East Side Winery, 396 F.Supp. 590 (D.Wis.1975).

Law reviews. See citations at end of Note to § 766.

ALR Annotations:

Liability of one who induces termination of employment of another by threatening to end own contractual relationship with employer. 79 A.L.R.3d 672.
Liability of real-estate broker for interference with contract between vendor and another real estate broker. 34 A.L.R.3d 720.
Liability of purchaser of real estate for interference with contract between vendor and real-estate broker. 29 A.L.R.3d 1229.
Liability of purchaser of real estate for interference with contract between vendor and another purchaser. 27 A.L.R.3d 1227.
Liability in tort for interference with attorney-client or physician-patient relationship. 26 A.L.R.3d 679.
Liability for inducing employee not engaged for definite term to move to competitor. 24 A.L.R.3d 821.

Digest System Key Numbers:

C.J.S. Agency § 10; Torts §§ 3, 42-44.
West's Key No. Digests, Torts 12.