Subject: RE: [Asrg] draft-irtf-asrg-bcp-blacklists-00

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Wed, 5 May 2004 18:49:02 -0700

> On Wed, 5 May 2004 11:21:05 -0700, Hallam-Baker, Phillip wrote:
> >. Location is subject
> >to anti-discrimination statutes which are in general rather weaker
> >than the tort of contract interference.
> 
> Could you please clarify how you understand a blacklist operator to be
> involved here if he is not party to the contract?    I have heard this
> alleged from time to time but never seen the logic spelt out

Alice signs a contract with Bob in which Bob agrees to paint Alice's
house for $100.

Mallet tells Bob that if he paints Alice's house that he will refuse
to do business with her (or any other threat for that matter).

If Bob does so Alice can sue Bob for failure to complete the contract.
She can also sue Mallet for inducing the breach of contract as if 
Mallet was the defaulter.

To give the full law article treatment:

http://www.lectlaw.com/def/i084.htm

INTENTIONAL INTERFERENCE TORTS WITH PROSPECTIVE ECONOMIC ADVANTAGE

Nature of the Tort of Intentional Interference with Prospective Economic
Advantage

The elements of that tort of are: '(1) an economic relationship between [the
plaintiff and some third person] containing the probability of future
economic benefit to the [plaintiff], (2) knowledge by the defendant of the
existence of the relationship, (3) intentional acts on the part of the
defendant designed to disrupt the relationship, (4) actual disruption of the
relationship, [and] (5) damages to the plaintiff proximately caused by the
acts of the defendant.' (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827.)

NOTE: The Restatement of Torts explained it this way, 'The essential thing
is the purpose to cause the result. If the actor does not have this purpose,
his conduct does not subject him to liability under this rule even if it has
the unintended effect of deterring the third person from dealing with the
other.' 

The important thing is the intent. The ultimate goal may be to reduce spam,
but that does not mean that the steps taken to achieve that goal are
unintentional. The very clear purpose of 'collateral damage' is to disrupt
that relationship.

		Phill

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---

From: "Dr. Jeffrey Race" <[email-masked]>
Date: Thu, 06 May 2004 08:27:26 -0400

On Wed, 5 May 2004 18:49:02 -0700, Hallam-Baker, Phillip wrote:
>Alice signs a contract with Bob i

Thank you.   I will study this and respond after some upcoming travel

Jeffrey Race

---

From: Bart Schaefer <[email-masked]>
Date: Thu, 6 May 2004 15:27:31 +0000

On May 5,  6:49pm, Hallam-Baker, Phillip wrote:
}
} Alice signs a contract with Bob in which Bob agrees to paint Alice's
} house for $100.

I'm curious:  Anyone know of case law in which the rest of Phillip's
example stands as is, but the contract Alice signs with Bob is to post
billboards on Jim's wall without Jim's permission?

That is, if the contract isn't legal to begin with, can Bob still be
sued for breach?

---

From: "Chris Lewis" <[email-masked]>
Date: Thu, 06 May 2004 14:28:24 -0400

> That is, if the contract isn't legal to begin with, can Bob still be

No.

If the contract isn't legal (ie: calls for things that one of the 
parties cannot guarantee to produce), there is _no_ contract.  Full 
stop. Nobody's bound to it, let alone someone possibly getting hit with 
tortious interference of an illegal contract.

In the situation at hand, I can't contract with you to "guarantee 
delivery" to specific people.  Unless I have a contract with those 
people to accept delivery.  The best I can do is contract delivery to "N 
people".  I then have to start delivery attempts until I manage to 
achieve N people accepting delivery.  I can't sue those that refuse 
delivery nor their agents.  I can't sue someone for their refusal to let 
me trespass!  If I can't achieve N people, I'm in breach - I shouldn't 
have promised something I couldn't deliver, and I'm stuck with the 
penalty clauses.

The other aspect is the requirement of intent and knowledge.  Going back 
to PHB's original scenario, Mallet can't be held under "tortious 
interference" if there is no knowledge of such contract or intent to 
interfere with it.

Let's try a reasonably accurate analogy please:

FlyersRealBig distributes flyers.  Crotch marketing contracts with 
FlyersRealBig to distribute flyers about crotch supports "throughout the 
city". I live in a "gated community", and my condo fees include a fee 
with CondosRUs to patrol the perimeter and prevent scruffians coming 
through the gate.  Especially flyer carrying scruffies. CondosRUs 
engages the services of FlyerCop to use satellite lasering systems to 
pinpoint FlyersRealBig scruffies so that CondosRUs security staff can 
turn them away.

Is FlyerCop "tortiously interfering"?  I think not.  CondosRUs?  Nope.

Contracts cannot impose conditions on people who aren't a party to the 
contract.  The recipient of the flyer, the security guards and the 
services they use (the FlyerCops) are not parties to the contract, and 
cannot be forced to accept delivery.

All FlyersRealBig can legitimately offer as a service is "best efforts 
to deliver", _unless_ they have a contract with the recipient.