Law Publications

Title

Rights-Based Justifications for the Tort of Unlawful Interference with Economic Relations

Document Type

Article

Publication Date

2008

Journal

Legal Studies

Volume

28

Issue

2

First Page

215

URL with Digital Object Identifier

https://doi.org/10.1111/j.1748-121X.2008.00081.x

Last Page

233

Abstract

The tort of unlawful interference with economic relations is anomalous since it allows a plaintiff to sue a defendant for a loss that is occasioned by an unlawful act committed by that defendant against a third party. This parasitic liability is seemingly in violation of the basic tort law principle that in order to make out a claim what the plaintiff must show is a violation of her own rights, not merely a wrong to someone else. Thus, it appears that the tort is an instance of damnum absque injuria. This paper examines whether this is in fact the case by examining if there are any rights‐based theories that can explain the tort in a way that is consistent with basic private law principle. In other words, is it possible to find an independent right of the defendant that has somehow been violated, one which explains why the defendant is able to sue in their own right? Upon examination, it appears that the ‘right to trade’, ‘remoteness’ and ‘abuse of right’ theories are largely incapable of providing such an explanation since they display many seemingly insurmountable problems of coherence and fit with the existing case‐law. More promising are the arguments that the tort is a justified exception to basic principle or that it is an example of public rights being vindicated in private law, yet each of these theories is also problematic in some respects. The overall thesis of the paper is that the tort of unlawful interference with economic relations is radically under‐theorised and that it, and the other economic torts, could benefit tremendously from more intense academic examination.

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