This chapter considers the areas in which the operation of the common law impacts upon issues that are closely related to the public regulation of competition. Certain doctrines of common law may be applied to situations in which competition is being restrained, or to competitive conduct. Common law doctrines in antitrust are becoming less important following the growth of modern competition law. The restraint of trade doctrine remains vibrant, and is often relied on in professional disputes. Restraint of trade is a doctrine of contract law under which certain contracts are unenforceable if they unreasonably restrain the activity of a party after the termination of the main contract. A number of rarely used torts may also be relevant to certain competitive situations.
Chapter
23. The common law and competition
Chapter
15. The general ‘economic’ torts
This chapter explains the five general economic torts: inducing breach of contract, causing loss by unlawful means (after OBG v Allan), lawful means conspiracy, unlawful means conspiracy (after Total Network v Revenue and Customs Commissioners as well as JSC BTA Bank v Ablyazov), and intimidation. The chapter notes that what binds these torts together is their focus on the element of intention and causation of loss, as well as the tendency of the courts to apply them in business and other financial settings. Otherwise, the torts are quite disparate in their operation. It is argued that some of the torts should be seen as applicable outside the dominant setting, in part where they reflect general principles of responsibility for harm causation.
Chapter
13. Economic Torts
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter deals with economic torts. Economic torts include deceit, malicious falsehood, passing-off, inducing breach of contract, intimidation, and conspiracy. The first three involve deception: deceit is telling lies to the claimant; telling lies to a third party is malicious falsehood; misleading a competitor's customers, even bona fide, is passing-off. The other three torts all involve collaboration, whether reluctant, as a result of threats, complaisant as a result of positive incentives, or spontaneous. The chapter discusses the nature of the harm; the defendant's conduct and purpose, anti-competitive conduct; and the various ‘economic torts’ in terms of their various components: intention, conduct, and wrongfulness.
