At the intersection of tort, property, and contract law sits a strange tort. It began in 1853, in London, England, from a ferocious rivalry between two competing opera-house owners. Johanna Wagner, a celebrated soprano star, had agreed to perform at Benjamin Lumley’s opera house, but before she began her engagement, she accepted a better offer from Lumley’s rival, Frederick Gye, to perform at his venue instead. Lumley pursued remedies in contract against Wagner, but also sought to bring a suit in tort against Gye. In Lumley v. Gye, a case heard on demurrer, the court extended the ancient action of enticement, and held that this kind of inducing or procuring a contractual breach could constitute a wrong capable of redress in the form of tort. Generally called interference with contractual relations in America, this tort is now a common cause of action in commercial litigation. It also formed the basis for one of the largest civil jury awards in American history.
Despite its popularity among litigants, academics routinely decry the tort and advocate its alteration, abandonment, or abolishment. They offer a compelling laundry list of the tort’s most problematic aspects. Among other issues, the tort violates the doctrine of privity of contract by imposing rights and obligations on non-contractual parties, transforms an in personam right in contract into an in rem right in tort, treats the breaching promisor as the property of the original promisee, and ignores the breaching promisor’s role in causing the breach. Most importantly, the tort infringes upon the liberty and autonomy of the breaching party, both by disregarding her freedom to choose whether to perform or breach and by impeding her ability to enter into new and more beneficial agreements.
The problems associated with the tort are easy to identify, but how it became a viable cause of action in spite of its deeply troubling features has been a more difficult question. In this Article, I show how an understanding of the tort’s gendered origin illuminates many of the doctrinal puzzles surrounding the tort. Specifically, I connect interference with contractual relations to the structure of an erotic triangle, a cultural archetype in which two rivaling men compete for a desired woman.