CHARGE 330B — Page 4 Of 4 330B TORTIOUS

CHARGE 3.30B — Page 4 of 4
3.30B TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS (REALTY BROKER
V. THIRD PARTY) (Approved 6/79)
The law protects those in the pursuit of their livelihood. The right
to pursue the real estate brokerage business is one of the property
rights and interest which the law protects against unlawful
interference1. A person who unjustifiably interferes with the contract
of another is guilty of a wrong. The protection of the law is not
limited only to those con­tracts already made, but also protects a
person’s interest in a reasonable expectation of economic gain2.
When a party contracts with a real estate broker, the broker agrees to
use his/her knowledge of what property is or can be made available and
who is or can be interested in a given parcel, in return for a
commission if he/she succeeds in bringing buyer and seller together at
terms agreeable to both. In the practical world of business dealings,
the broker trusts that those who accept or seek his/her services will
not cheat him/her of the fruit of his/her labors.
In order to show that a party has interfered with the broker’s
expectation of economic gain from the successful performance of
his/her services as a broker, the broker must prove several elements
of his/her claim:
FIRST: The broker must prove the existence of an agreement between
himself/herself and the seller of the property, under which agreement
the seller agreed to pay the broker a commission.
SECOND: The broker must prove that the defendant had knowledge of the
agreement between the broker and the seller.
THIRD: The broker must prove that the defendant intentionally, and
maliciously, that is, with motive to harm and without justification,
interfered with the contractual relation existing between the broker
and the seller by inducing, procuring or causing a breach of
termination of the agreement,3 or if he/she did not act out of sheer
malice, but rather for profit or to enhance his/her financial
position, then it must be shown that his/her conduct went beyond or
transgressed generally accepted standards of morality; that is, a
violation of standards of socially acceptable conduct.4
FOURTH: The broker must also prove it is reasonably probable he/she
could have found a purchaser willing and able to buy on the seller’s
terms as communicated to the broker and thus would have received the
anticipated economic benefit.5
Cases:
Harris v. Perl, 41 N.J. 455 (1964), suit by broker against purchaser
and others, involving interference with contractual relations and
interference with reasonable expectations of economic advantage;
George H. Beckmann, Inc., v. Charles H. Reid & Sons, Inc., 44 N.J.
Super. 159 (App. Div. 1957), broker had oral listing from seller and
recovered damages from purchaser; Sustick v. Slatina, 48 N.J. Super.
134 (App. Div. 1957); Wear-Ever Aluminum, Inc., v. Townecraft, etc.,
Inc., 75 N.J. Super. 135 (Ch. Div. 1962); Kurtz v. Oromland, 33 N.J.
Super. 443 (Ch. Div. 1955), “malice” as necessary element of
action for malicious interference with contract, meant intentional
commission of wrongful act without just case or excuse; as to suit
against owner, see Brenner and Co. v. Perl, 72 N.J. Super. 160 (App.
Div. 1962), motion for summary judgment denied; Louis Schlesinger Co.
v. Rice, 4 N.J. 169 (1956); Louis Kamm, Inc. v. Flink, 113 N.J.L. 582
(E. & A. 1934).
NOTE TO JUDGE
=============
For distinction between the tort of interference with contractual
relations, and interference with the opportunity to enter into an
advantageous business relationship, see Fitt v. Schneidewind Realty
Corp., 81 N.J. Super. 497 (Law Div. 1963), involving suit by broker
against purchaser.
The mere fact that a contract is unenforceable between the parties
affords no justification for the act of a third person who, for
his/her own purposes, takes steps which prevent its performance by one
of the parties to it, who, although not bound to execute it, is
willing and anxious to do so.
Prosser, Torts (2nd Ed.) Sec. 726; 1 Harper & James, Sec. 6.7 (1956);
AALFO Co., Inc. v. Kinney, 105 N.J.L. 345, 347 (E. & A. 1929); Louis
Kamm, Inc. v. Flink, 113 N.J.L. 582, 591 (E. & A. 1934); George H.
Beckmann, Inc. v. Charles H. Reid & Sons, Inc., 44 N.J. Super. 159
(App. Div. 1957) at p. 165; Harris v. Perl, 41 N.J. 455 (461), and
cases therein cited.
But see Tanenbaum v. Sylvan Builders, 50 N.J. Super. 342 (App. Div.
1958), which holds that an unlicensed broker cannot sue for tortious
interference with a real estate commission contract, affirmed in 29
N.J. 62 (1959) but modified to permit the cooperating New Jersey
broker to sue on his/her commission agreement.
Myers v. Arcadio, Inc., 73 N.J. Super. 493 (App. Div. 1962); C.B.
Snyder Realty Co., Inc. v. Seaman Bros., Inc., 79 N.J. Super. 88 (App.
Div. 1963); Sustick v. Slatina, 48 N.J. Super. 134 (App. Div. 1957);
Fitt v. Schneidewind Realty Corp., 81 N.J. Super. 497 (Law Div. 1963);
Harper and James Law of Torts, (1956), Sec. 6.11, p. 510; DiCristofaro
v. Laurel Grove Memorial Park, 43 N.J. Super. 244 (App. Div. 1957);
Weinstein v. Clementsen, 20 N.J. Super. 367 (App. Div. 1952) (as to
competing real estate brokers).
1 Louis Kamm, Inc. v. Flink, 113 N.J.L. 582 (E. & A. 1934).
2 Harris v. Perl, 41 N.J. 455 (1964).
3 McCue v. Deppert, 21 N.J. Super. 591 (App. Div. 1952); DiCristofaro
v. Laurel Grove Memorial Park, 43 N.J. Super. 244 (App. Div. 1957);
Sustick v. Slatina, 48 N.J. Super. 134 (App. Div. 1957).
4 Lesli Blau Co. v. Alfieri, 157 N.J. Super. 173 (App. Div. 1978).
5 Myers v. Arcadio, Inc. 73 N.J. Super. 493 (App. Div. 1962).