Tortious Interference With Contract
I’ve bitched about alienation of affection laws in the past, both because I think any emotional harm of seeing one’s ex move on with his/her life should be damnum absque injuria and, more importantly, because to the extent there is a compensable harm in there, the person primarily responsible ought to be the offending spouse who violated his own wedding vows, not the (relatively) innocent third party who never took any to begin with. In an alienation of affection state, leaving your spouse is not a tort, but encouraging someone else to do so. That makes no sense to me whatsoever.
But this post is not about alienation of affection laws, at least not primarily. In the last A of A discussion, Phelps raised an interesting point about tortious interference with contract, a business tort which rests on a similar premise. As with alienation of affection laws, tortious interference with contract rests on the theory that while X (in this case, breach of contract) is itself not a tort, inducing another person to X may well be. While the overwhelming majority of states have abolished alienation of affection, and even North Carolina has recently scaled them down a bit, I’m not aware of a single state that has done so for its business counterpart. This means that in most states, you can can sue a business for “maliciously” stealing your business partners but not for stealing your wife. Can anyone justify that? If anything, I think it would make more sense to split the baby the other way, on the theory that marriage deserves protections above and beyond those applicable to ordinary contracts. What say you?
October 18th, 2009 at 12:17 pm
I’m pretty sure I don’t agree with you about alienation of affection laws. While I agree that more of a remedy should be available against the offending spouse — and used to be, before “no-fault” divorce, in the form of lesser property settlements — I reject ab initio your notion of “the (relatively) innocent third party.” Aside from the fact that anyone who would become involved with an unfaithful spouse of another is a damn fool (if he or she expects faithfulness should they be married), people who knowingly do so (and I recognize that there are some who don’t know) are snakes who should be subject to redress.
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October 18th, 2009 at 12:45 pm
I guess my only question would be if AoA suits required the same elements as any other tortious interference case. Did the Homewrecker (that would be a killer term for the defendant) know or should have known that the Cad was married? Did the Homewrecker approach the Cad, (because if the Cad approached the Homewrecker, then it would just be another act in furtherance of his own breach)? Was the marriage already sustainable before the Homewrecking (because if not, then what are the damages)?
I guess I could make an argument that if the Homewrecker knew or should have known that he was married and didn’t rebuke his advances, then she was creating a situation that but for her actions would not have been, but I think these are the sorts of distinctions and judgment calls that juries are good at working out.
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October 18th, 2009 at 5:29 pm
It seems like intent would be much easier to demonstrate in interference of contract than in alienation of affection. At least as a layman, it seems like the latter could result from acts that might not be intended as harmful (talking friendly in a manner not read as intended, or just wanting to get laid) due to the presumption that lovers are better dealt with one at a time, while corporations can service multiple clients rather acceptably. Interference of contract would thus be more tied to preventing the company from fulfilling a separate task than having it act upon a second one — more from stealing your wife than for having her over.
Or, from a more practical standpoint, there are a pretty sizable number of average Joes and politicians who’d be at risk from suit over alienation of affection than there would be over interference of contract, and far less who benefit from alienation of affection than interference of contract.
October 18th, 2009 at 5:58 pm
James: not sure I follow your logic there. On the one hand you say you agree that more of a remedy should be available against the offending spouse, on the other you purport to reject the notion that the other third party is the relatively innocent one. You do understand the meaning of the word “relatively,” right? In any event, it’s a mistake to confuse alienation of affection with “becoming involved with an unfaithful spouse.” It may well be true that most people who get sued for A of A did in fact do that; however, it’s not an element of the tort. Any A who encourages B to divorce C for any reason, romantic or otherwise, is potentially liable to C for alienating B’s affection.
Phelps: I’m pretty sure Homewrecker (who, as previously noted could be a same sex, straight best friend urging his/her friend to get out of a bad relationship) has to know of the existence of the marriage to be liable for A of A, but notto be liable for “criminal conversations” (i.e., adultery, which everyone keeps confusing with A of A).
December 3rd, 2009 at 1:12 pm
It is so refreshing to hear someone with my viewpoints of AofA. People get married, people get divorced, move on! If a spouse chooses to move on with life in another relationship, then the existing relationship was not that strong to begin with. This law is not about the new spouse or new relationship, it is about not taking blame for a failed marriage. If it is person B’s fault for the marriage breaking up, then it is not person A’s fault. These scorned spouses should take ownership over thier role in the failed marriage and stop trying to get even. This law is archaic and out-dated, and should be abolished. Thank you so much for your website, I wish more people would express what you have!
December 18th, 2009 at 6:51 pm
Your view point of marriage seems like you don’t take it seriously. A marriage is sacred, and anyone that intentionally destroys a marriage should absolutely be held accountable for their behavior. There are obviously three sides to every story, and that is why the jury is so important in A of A case. You have to agree that if someone intentionally destroys a family, knowing that it could have been prevent if the “other women” would just honor marriage, and step away, she should be held accountable. This act alone is malicious and hideous and how I see it; the home wrecker should have to face the music.
December 18th, 2009 at 7:25 pm
Nonsense. “Homewrecker” is a nice epithet but at the end of the day, no third party really *can* wreck a home that wasn’t wrecked to begin with. For the many years in which I was happily married, or at least thought I was, even Christie Brinkley could have propositioned me and the answer would have been “thanks but no thanks, I’m spoken for.” It wasn’t until after the marriage had broken down beyond repair that cheating was even a temptation (and no, I never acted on that temptation, though I can understand why others do under the circumstances). If you have a shred of evidence that marriage is more robust as an institution in North Carolina than it is in South Carolina, Virginia or any other state in the region, let’s see it. Otherwise you’ll have to admit that A of A is to protecting marriage as gun control is to crime control: well-intentioned in principle, but worse than useless in practice.
January 12th, 2010 at 11:25 pm
what about a situation where in a husband has an affair, says it’s over because he got caught, says wants to work things out and even goes to marriage counseling, couples vacation and you find out couple of years later that not only are they still together, she knew he never left his wife nor filed for separation and she knew that it was also affecting the children? ok, alienation of affection for the injured spouse or wife is useless..in every marriage, whoever cheats or commits adultery, usually chose so because there is a problem in the marriage and made a poor and stupid choice..usually the other partner has some part in the problem..but what about the kids that were affected by the affair? is there something that can be done about that? besides getting child support from the father? what do we do for them? their lives will never be the same, they were also fooled thinking everything was ok and then bam, divorce…its really sad how everyone would rather go for the no fault because getting a divorce under adultery is highly discouraged by lawyers for the cost and time and emotional stress..yes, some people do it for revenge, what about the people that want to do it because it is the right thing to do for your children at least? a mistress that knows is an accomplice and a willing partner that wants to destroy the contract of marriage. To me, that is not just a between two people..it’s between three even though she didn’t sign it, she is in it..
January 12th, 2010 at 11:46 pm
I’m not aware of any jurisdiction where the kids have a cause of action against either the cad or the homewrecker, or where the existence of children is even relevant to the tort in question. Nor can I for the life of me imagine how the kids’ interests are ever served by a nasty lawsuit between their parents, or between one of their parents and someone the other cares about (and, at the time of the suit, may well be married to). A of A is great for (1) enabling bitter, scorned exes to blame someone else for their failures, (2) line the pockets of greedy trial lawyers and (3) virtually guarantee that every divorce that can turn ugly, does. Trouble is, it’s not good for much else.
Also FYI, you can’t sue for alienation of affection in Virginia. North Carolina is one of only seven states that still recognize this crazy tort, and one of only two in the South, Mississippi being the other.
January 12th, 2010 at 11:57 pm
yes, I agree..my friend is going through it right now..he left her..i asked if they discussed who will be filing for the divorce but she said they never discussed it..i was wondering if she should let him be the one to file for it since she was already told filing under adultery will be very costly. also, i’m wondering, they have been married for 20 yrs, what if no one files for the divorce for like five years, when it comes to filing it, will it be considered still as time in marriage or not? meaning, will it be just 20 yrs or 25?
January 31st, 2010 at 11:07 pm
Just learned that Shana Templin was found guilty by jury of AofA and Criminal conversations. I knew that would bit you back girl. I know how you feel about AofA but I guess your peers did not agree with you. You should have just kept your eyes on your students, and not the principal.
February 1st, 2010 at 8:14 am
You cannot be found guilty of AofA, it is a civil suit. Yes the jury ruled in favor of the plaintiff, but also agreed that she had NO damages and should MOVE ON, which was demostrated by the $2 they awarded her. After a week of wasting everyone’s time and money, I still have my husband and nothing has changed. Seeing his ex-wife make a fool of herself on the stand just reminded him why he left. I am moving on, hope she will too. Amanda, maybe you should move on too.
February 1st, 2010 at 11:52 am
You haven’t changed a bit Shana. Still a liar. I know what happened, and I know that you are short in your calculations about 15 grand in damages. I’m gland she took you to court, and I am glad that the jury got to see the real you. From the way I see it, you got what you deserved. Be prepared, someone will catch his eye, what you did to her will be done to you. You still have your husband, for now. Remember you are wife # 3, and he’s not been faithful to either wife prior to you.
Your behavior has been and still is unacceptable. We cheered when we heard the news. Your reputation will follow you to the next school, if you’re ever hired again.
February 1st, 2010 at 12:21 pm
AWK-ward.
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February 1st, 2010 at 12:53 pm
Awkward indeed, and a bit suspicious to boot. As of 11:07 p.m. last night, Amanda had “just learned” that Shana had been found “guilty” of the twin non-crimes, but barely twelve hours later she’s the expert on tort law in general and this case in particular, with fond memories of how she and her equally shallow colleagues had gloated way back when, i.e., yesterday.
That said, I do like to keep Amanda around to remind everyone what sort of a petty person supports crazy laws like these.
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February 1st, 2010 at 5:24 pm
Thanks, happy to help!
February 3rd, 2010 at 8:47 am
Amanda, setting aside your factually-challenged assertions about the specific suit against Shana, step back and consider the absurdity of your entire premise. On the one hand, you think it’s totally fair that Shana got fined somewhere between $2.00 and $15,002.00 for “stealing” her husband from Wife #2, who was totally innocent in the matter, having stolen her husband fair and square from Wife #1. On the other, you caution that the same thing will supposedly happen to Shana in the future. Suppose your prediction is correct. Unless the law changes in the interim, Shana will then be able to turn around and pull the same stunt against Wife #4 that Wife #2 pulled on her. The end result is that the last person to end up with this guy bears the ultimate responsibility for everyone else’s failures before her. Where’s the logic in that?
February 4th, 2010 at 2:55 pm
If what was true, than there is no logic. But what you assumed is far from the truth. The innocent wife here did not “steal” him from the first wife. Let’s not forget the victim here. If however, Shana finds another woman barging into her life, being the major part of the destruction of her marriage by a women who knows he’s married, and been told to leave them alone, then she can pursue a civil case.
February 4th, 2010 at 8:40 pm
There’s no logic, period. Logic dictates that if either spouse wants out of a marriage, there is something fundamentally wrong with that marriage. Do you really think that Philandering-Dude and Ms. Innocent were living a storybook, happily-ever-after life until Big Bad Shana came around and changed all that with a wave of a wand? Get real! Maybe Philandering-Dude wanted out because he’s a cad. Or maybe he’s a decent guy who wanted out because she drove him around the bend – not unlikely given her subsequent behavior in bringing this reckless suit. Or more likely, somewhere in between. I don’t know whose fault it was, nor do I really care. All I do know is that to the extent it makes sense to talk about fault, fault for a failed marriage lies with one or both of its parties, not with any third party who can be described at most as the symptom rather than the disease. If the marriage itself had been good, they’d still be together now, and there wouldn’t be a damned thing Shana or any other third party could have done about it.
February 10th, 2010 at 10:05 pm
Apparently the jury thought otherwise.
February 11th, 2010 at 12:10 am
Indeed they did. As Stella Liebeck can attest, juries will believe almost anything.