MOSK, J. I concur in the judgment.
In his complaint, plaintiff John Della Penna (hereafter Della Penna) brought various claims against defendant Toyota Motor Sales, U.S.A., Inc. (hereafter Toyota), concerning his business relationship with dealers of its [394]Lexus automobiles. Under the common law, he asserted a cause of action for the tort of intentional interference with prospective economic advantage. Trial was by jury. The superior court instructed on the tort. By a verdict of nine to three, the jury found in favor of Toyota and against Della Penna thereon. The Court of Appeal reversed the ensuing judgment in that part, concluding that the instructions given were prejudicially erroneous.
Like the majority, I would reverse the Court of Appeal’s judgment in this regard. As I shall explain, I believe that any instructional error was not prejudicial.
I
With the dissonance caused by such terms as “malice,” “justification,” and “privilege” (see, e.g., Rest.2d Torts, ch. 37, introductory note, pp. 4-6), the common law on the tort of intentional interference with prospective economic advantage, both in American jurisdictions generally and in California specifically, is fast approaching incoherence. (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law (1993) 77 Minn. L.Rev. 1097, 1099 [stating that “tortious interference law suffers from considerable doctrinal confusion”]; id. at pp. 1120-1137 [analyzing the tort of intentional interference with prospective economic advantage]; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine (1982) 49 U. Chi. L.Rev. 61, 61 [noting the “absence of a coherent doctrine”]; see also Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity (1981) 81 Colum. L.Rev. 1491, 1506 [arguing, with a citation to J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799 [157 Cal.Rptr. 407, 598 P.2d 60], that “[i]n California tort protection of advantageous relations has been merged into protection against all ‘foreseeable harm’ ”].)1
Before the Court of Appeal decided the seminal case of Zimmerman v. Bank of America (1961) 191 Cal.App.2d 55 [12 Cal.Rptr. 319], Witkin [395]reported that “the law” on the tort of intentional interference with prospective economic advantage was “developing at a rapid rate,” but that its rules were “admittedly vague” and its applications “difficult to classify.” (2 Witkin, Summary of Cal. Law (7th ed. 1960) Torts, § 158, pp. 1332-1333.) More than a decade later, and in spite of Zimmerman' s effort to rationalize the governing principles, Witkin was compelled to make exactly the same report. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 392, p. 2643.) We then handed down our decision in Buckaloo v. Johnson (1975) 14 Cal.3d 815 [122 Cal.Rptr. 745, 537 P.2d 865] (hereafter sometimes Buckaloo), which straightway became the leading authority. Today, after the passage of two decades, and notwithstanding Buckaloo'% further effort at rationalization, the situation remains substantially unchanged.
A
One reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered in its doctrinal basis.
During the second half of the 19th century and the first half of the 20th, as the times pressed hard on both law and society, common law courts, first in England and then in the United States, developed what has become known as the “prima facie tort doctrine.” (Note, The Prima Facie Tort Doctrine (1952) 52 Colum. L.Rev. 503, 503; Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle (1959) 54 Nw. U. L.Rev. 563, 563-566.) The traditional source was the old action on the case. (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 508; Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563.) The analytical object was a framework “capable of assisting comprehension and guiding an internal systematic development of the subject matter” (Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563), to the end that “principle rather than precedent” might govern (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503; accord, Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563).
[396]In Mogul Steamship Co. v. McGregor, Gow & Co. (1889) 23 Q.B.D. 598, 613, affirmed in the House of Lords sub nomine Mogul Steamship Company v. McGregor, Gow & Co. (1891) A.C. 25, Lord Justice Bowen in the Court of Appeal made the famous statement of the prima facie tort doctrine: “ [Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that person’s property or trade, is actionable if done without just cause or excuse.”
In Athens v. Wisconsin (1904) 195 U.S. 194, 204 [49 L.Ed. 154, 159, 25 S.Ct. 3], Justice Holmes, who “was in large measure responsible for the introduction of the [prima facie tort] doctrine in this country” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 504; accord, Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 564), made the equally famous statement: “It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape.”
In the middle of this century, Dean Pound made the following restatement: “One who intentionally does anything which on its face is injurious to another is liable to repair the resulting damage unless he can establish a liberty or privilege by identifying his claim to act as he did with some recognized public or social interest.” (3 Pound, Jurisprudence (1959) p. 9.)
The “elements” of the “prima facie tort” have been said to be three in number.
The first comprises intent and the likelihood of harm. Under one view, there must be “intent to do the act complained of,” which in turn must be of a sort as is “calculated in the ordinary course of events to cause” the harm “complained of.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 505, 508.) There need not be an intent to cause harm. (Id. at p. 505; see Carpenter, Interference With Contract Relations (1928) 41 Harv. L.Rev. 728, 735 [stating that “[m]alice in the sense of bad motive is not a requisite”].) Under another view, however, intent to cause harm is indeed necessary. (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 506-507.)
The second is harm. “Since prima facie tort law is an outgrowth of the action on the case, its primary purpose is remedial. . . .” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 508.) As a result, harm is necessary: it embraces pecuniary loss and perhaps other loss as well. (Id. at [397]pp. 508-509; accord, Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 570 [stating that harm “is the essence of the ‘action,’ wherefore nominal damages cannot be sought”].)
The third is justification or privilege. “The interests of the parties and that of society form the matrix out of which the decision” whether the defendant’s conduct is justified or privileged “is rendered.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 509; see Carpenter, Interference With Contract Relations, supra, 41 Harv. L.Rev. at pp. 745-762 [speaking expressly of the tort of intentional interference with prospective economic advantage, among others].) Generally, “an infinite variety of situations can develop, and each case must turn on its special facts.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 510.) So far as pleading and proof are concerned, the issue of justification or privilege has traditionally operated as an affirmative defense for the interfering party as defendant, and not as a part of the cause of action for the interfered-with party as plaintiff. (Dobbs, Tortious Interference With Contractual Relationships (1980) 34 Ark. L.Rev. 335, 338, fn. 19; cf. Buckaloo v. Johnson, supra, 14 Cal.3d at pp. 827-828 [same as to the tort of intentional interference with prospective economic advantage].)
It is the prima facie tort doctrine that is the basis of the tort of intentional interference with prospective economic advantage. (E.g., Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 337-338; Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 504-505, 508 [speaking impliedly of the tort of intentional interference with prospective economic advantage]; Carpenter, Interference With Contract Relations, supra, 41 Harv. L.Rev. at pp. 732-762 [speaking expressly of this tort among others]; see, e.g., Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 591-592 [88 Cal.Rptr. 443] [expressly recognizing the prima facie tort doctrine as the basis of this tort]; Buxbom v. Smith (1944) 23 Cal.2d 535, 546 [145 P.2d 305] [impliedly recognizing as much].)
That fact is apparent in section 766 of the first Restatement of Torts. It provides that, generally, “one who, without a privilege to do so, induces or otherwise purposely causes a third person not to” “enter into or continue a business relation with another” “is liable to the other for the harm caused thereby.”
The prima facie tort doctrine, however, is problematic. Very much so. The question has been asked whether it “has served any purpose other than to provide a sonorous apothegm better suited to opinion writing than decision [398]making.” (Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 564.) The answer is no.
The prima facie tort doctrine exhibits a general deficiency. Perhaps it has resulted in a kind of “internal systematic development of the subject matter.” (Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563.) But if it has, it has done so by sacrificing an external connection to society. “The idea is that ‘intentional infliction of harm’ is, prima facie, a tort. The problem is that almost any legitimate act can cause ‘intentional’ harm . . . .” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 337-338, fn. 18.) Therefore, “[i]t must be understood that intentional infliction of harm . . . covers a multitude of desirable acts as well as a multitude of sins.” (Id. at p. 345; see Top Serv. Body Shop, Inc. v. Allstate Ins. Co. (1978) 283 Or. 201, 205 [582 P.2d 1365, 1368]; Leigh Furniture and Carpet Co. v. Isom (Utah 1982) 657 P.2d 293, 303 [following Top Serv. Body Shop].) “The prima facie tort rule, then, is not a rule about wrongdoing at all. It seems to be a philosophical effort to state all”—or at least much—of “tort law in a single sentence rather than an effort to state a meaningful principle.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 345.) “[Principle rather than precedent” may indeed govern. (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503.) But it is a principle that is peculiarly empty.
The prima facie tort doctrine exhibits a specific deficiency with regard to the tort of intentional interference with prospective economic advantage. “Since not all interference [is] actionable, or even morally wrong, it cannot be said that there [is] some principle against interference. Since there is no hint in such abstract statements of liability as to what might constitute a defense it is difficult to believe that there is actually any principle involved at all. It has rather the faded ambience of a ‘universal truth’ once thought to be discoverable in law. In any event, this [leaves] the defendant in an interference case knowing he [is] entitled to some defense, but not knowing what defenses would be accounted sufficient.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 345.)
B
A second reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered within the law itself.
To borrow words from Brennan v. United Hatters of North America, Local No. 17 (1906) 73 N.J.L. (44 Vroom) 729, 742 [65 A. 165, 171], the premise [399]of the tort seems to be that, “[i]n a civilized community which recognizes the right of private property among its institutions, the notion is intolerable that a man should be protected by the law in the enjoyment of property once it is acquired, but left unprotected by the law in his efforts to acquire it.”
The tort’s “protectionist” premise, however, is at war with itself. For the person who deserves protection in the acquisition of property is not only the interfered-with party but also the interfering party. Why then should the interfered-with party receive favor, while the interfering party is disfavored, by virtue of their respective statuses? Why should the interfered-with party’s acquisitive efforts be elevated to a kind of property interest, good against the world, while those of the interfering party are deemed illegitimate? It is “often assumed . . . that interference . . . should produce liability because it is wrong to interfere. This is, however, very much the same as saying it is wrong because it is wrong.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 343 [speaking expressly of interference with contract].) In the words Lord Bramwell spoke in the House of Lords in Mogul Steamship Co. v. McGregor, Gow & Co., supra, A.C. 25, 47, affirming Mogul Steamship Co. v. McGregor, Gow & Co., supra, 23 Q.B.D. 598, “[ijt does seem strange”—and more than strange—“that to enforce freedom of trade, of action, the law should punish” the interfering party “who make[s] . . . perfectly honest” arrangements “with a belief’ that they are “fairly required for [his] protection,” whereas it rewards the interfered-with party who does likewise. (Italics in original.) Reason supports the conclusion that, even when there is a breach of contract, the interfered-with party should not be preferred over the interfering party: the breach may be “efficient.” (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at pp. 1119-1120; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 78-91; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 360-361.) Reason practically compels the same conclusion when there is no breach because there is no contract. (See Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 90-91.)
Further, liability under the tort may threaten values of greater breadth and higher dignity than those of the tort itself.
One is the common law’s policy of freedom of competition. “ ‘The policy of the common law has always been in favor of free competition, which [400]proverbially is the life of trade. So long as the plaintiff’s contractual relations are merely contemplated or potential, it is considered to be in the interest of the public that any competitor should be free to divert them to himself by all fair and reasonable means. ... In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff’s back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.’ ” (A-Mark Coin Co. v. General Mills, Inc. (1983) 148 Cal.App.3d 312, 323-324 [195 Cal.Rptr. 859], quoting, without fns., Prosser, The Law of Torts (4th ed. 1971) Interference With Prospective Advantage, § 130, pp. 954-955; see, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1107.)
Another of these values expresses itself in the guaranty of freedom of speech in the First Amendment to the United States Constitution.2 “[S]ociety places a high value on free speech.” (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 74.) “ ‘The First Amendment presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty— and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole.’ ” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1041 [232 Cal.Rptr. 542, 728 P.2d 1177], quoting Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503-504 [80 L.Ed.2d 502, 518-519, 104 S.Ct. 1949].) The interfering party, however, often interferes by means of words. It has been said that, “so far as tort liability is imposed for the communication of facts, opinions or arguments, that liability is simply inconsistent with the law’s long commitment to free speech.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 361; see generally, id. at pp. 361-363.)3 At the very least, the “need for limits is acute . . . .” (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort [401]Doctrine, supra, 49 U. Chi. L.Rev. at p. 74.) It matters not that the words in question may amount only to so-called “commercial speech.” (See Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528, 1544-1545 [1 Cal.Rptr.2d 514].) That is because “commercial speech is not ‘wholly outside the protection of the First Amendment[.]’ ” (Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 91 [52 L.Ed.2d 155, 161, 97 S.Ct. 1614], quoting Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 761 [48 L.Ed.2d 346, 358, 96 S.Ct. 1817].)
A related value is found in the First Amendment’s guaranty of freedom of association. “[0]ne of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.” (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 933 [73 L.Ed.2d 1215, 1249, 102 S.Ct. 3409].) But when individuals join with each other to achieve an objective and undertake to act in the economic sphere, they run the risk that they will collectively be deemed an interfering party. Thus it happened to labor unionists, in the decades before and after the turn of the century, as they engaged in struggle over the terms and conditions of employment. (See, e.g., Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, supra, 93 Harv. L.Rev. at pp. 1529-1537 [dealing with torts including that of intentional interference with prospective economic advantage]; Sayre, Inducing Breach of Contract (1923) 36 Harv. L.Rev. 663, 690-696 [same].)4 And thus it has happened in the present day as members of minority groups have sought to secure and exercise their political and civil rights. (See, e.g., NAACP v. Claiborne Hardware Co., supra, 458 U.S. at pp. 888-906 [73 L.Ed.2d at pp. 1220-1232].) It follows that associational freedom, too, calls for the limitation of liability under the tort.
Still another value inheres in the First Amendment’s guaranty of the people’s right to petition the government for redress of grievances. This protection is one of our “great, . . . indispensable democratic freedoms,” and occupies a “preferred place ... in our scheme.” (Thomas v. Collins (1945) 323 U.S. 516, 530 [89 L.Ed. 430, 440, 65 S.Ct. 315].) The interfering party, however, may interfere by raising his voice and expressing his [402]views to governmental authorities. (See Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 135-137 [161 Cal.Rptr. 532]; see also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1133, 1135 [270 Cal.Rptr. 1, 791 P.2d 587].) To be sure, the “grievances for redress of which the right of petition was insured” include “religious [and] political ones” and others of that stature. (Thomas v. Collins, supra, 323 U.S. at p. 531 [89 L.Ed. at p. 441].) But they may embrace as well even such as relate merely to “business or economic activity.” (Ibid.) Thus, the right of petition also calls for the limitation of liability under the tort. (Carpenter, Interference With Contract Relations, supra, 41 Harv. L.Rev. at pp. 751-752.)5
C
A third reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered in its focus on the interfering party’s motive, that is, why he seeks whatever it is that he seeks through his interference, and on his moral character as revealed thereby.
That there is a focus on the interfering party’s motive cannot be doubted. (See, e.g., Hofmann Co. v. E.I. Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 401-402 [248 Cal.Rptr. 384]; Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 659 [192 Cal.Rptr. 732]; Lowell v. Mother’s Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 18 [144 Cal.Rptr. 664]; A.F. Arnold & Co. v. Pacific Professional Ins., Inc. (1972) 27 Cal.App.3d 710, 714-717 [104 Cal.Rptr. 96].) Sometimes motive is associated with the “empty” term “malice” (Sayre, Inducing Breach of Contract, supra, 36 Harv. L.Rev. at p. 675; see Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 94; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 342); sometimes it is not. Nevertheless, the focus on motive remains. To state the point thus runs the risk of understatement. For motive is not merely important: it has been said to be “crucial.” (Hofmann Co. v. E.I. Du Pont de Nemours & Co., supra, 202 Cal.App.3d at p. 402; see Rest.2d Torts, § 766B, com. d, pp. 22-23 [to similar, if qualified, [403]effect]; Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, pp. 1009-1010, 1014 [same].)
In spite of the many words devoted to the topic, the focus on the interfering party’s motive is simply inappropriate. That is because, for present purposes, motive is altogether immaterial.
In Boyson v. Thorn (1893) 98 Cal. 578, 583-584 [33 P. 492] (hereafter sometimes Boyson), which deals with the related tort of intentional interference with contract (Buckaloo v. Johnson, supra, 14 Cal.3d at p. 823),6 we stated: “It is a truism of the law that an act which does not amount to a legal injury cannot be actionable because it is done with a bad intent; that what one has a right to do another cannot complain of. It is conceded that one may lawfully persuade or procure another to break his contract with a third person, ‘if it be done from good motives.’ We think the qualification has no place in the proposition. If it is right, and the means used to procure the breach are right, the motive cannot make it a wrong any more than a good motive would justify fraud, deceit, slander, or violence to effect the same purpose. Suppose A, by fraudulent representations, induces B to sell him a large quantity of goods upon credit, intending to defraud B of the entire value of the goods. C, knowing that the representations are false, and not caring whether B shall lose his goods or not, but of unmixed malice and ill-will toward A, procures B to refuse to deliver the goods by truthfully informing B of the falsity of the representations made by A, will it be said [404]that C is liable in an action brought by A? . . . ‘Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. When in legal pleadings the defendant is charged with having wrongfully done the act complained of, the words are only words of vituperation, and amount to nothing unless a cause of action is otherwise alleged.’ “ (Italics in original.)
In Boyson, we followed Lord Chief Justice Coleridge. In Bowen v. Hall (1881) 6 Q.B.D. 333, 344 (hereafter sometimes Bowen), which was decided by the Court of Appeal, he rejected the proposition, dissentiente, that “the same person for doing the same thing under the same circumstances with the same result is actionable or not actionable according to whether his inward motive was selfish or unselfish for what he did.”
In Boyson, we also anticipated Lord Watson. In Allen v. Flood (1898) A.C. 1, 92, which was handed down by the House of Lords, he declared that “the law . . . does not. . . take into account motive as constituting an element of civil wrong.[7] Any invasion of the civil rights of another is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into a civil wrong for which reparation is due.” 8
[405]Even if it were not inappropriate, the focus on the interfering party’s motive surely has a tendency to yield untoward results. (See Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 95 [stating that “[p]roof of motivation . . . carries social costs”].)
To understate the point, “ambiguities [are] inherent in the motive inquiry . . . .” (Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1132; accord, Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at p. 307 [noting that “[problems” are “inherent in proving motivation”]; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 95 [stating that “[p]roof of motivation ... is error-prone”]; see Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503 [noting the “ambiguity inherent in the word[] . . . ‘malice . . .’ ”].)
As we declared in Boyson, quoting Lord Chief Justice Coleridge in Bowen, an inquiry of this sort is “ ‘dangerous and inexpedient ... for courts of justice; judges are not very fit for [it], and juries are very unfit.’ ” (Boyson v. Thorn, supra, 98 Cal. at p. 583, quoting Bowen v. Hall, supra, 6 Q.B.D. at p. 344 (Coleridge, L. C. J., dissentiente).)
It may be hard for a trier of fact to discern the interfering party’s motive because of factors peculiar to the latter. (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 11 Minn. L.Rev. at p. 1142.) That is true when the interfering party is an individual: a person’s mind and heart typically reveal themselves and conceal themselves at one and the same time. It is truer still when the interfering party is a group of individuals: many minds and hearts are then involved, and they cannot simply be added up. And, of course, it is truest when the interfering party is a corporation or similar entity: the “mind” and “heart” of such a one is purely Active.
It may also be hard for a trier of fact to discern the interfering party’s motive because of factors peculiar to itself. (See Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 348.) Certainly, motive may be spoken of as a fact. But it implicates a rich variety of values. As a result, it allows and perhaps even invites the trier of fact to pass a kind of moral judgment on the interfering party as such—a judgment [406]that, whether scrupulously fair and strictly impartial, on the one side, or passionately sympathetic or blindly prejudiced, on the other, is simply of no consequence here. For the “law has no roving commission to root out bad people or people whose minds may harbor bad thoughts.” (Id. at pp. 347-348.) Neither does it undertake to select for reward people of the opposite sort. Indeed, it has “generally shared” “the belief . . . that it is impermissible for” it “ to judge one’s person rather than one’s conduct.” (Id. at p. 347.) Thus, it treats all as equal before its bar, whether some may seem to be “small dealers and worthy men” (United States v. Freight Association (1897) 166 U.S. 290, 323 [41 L.Ed. 1007, 1021, 17 S.Ct. 540]) and others “rapacious monopolists” (Charles River Bridge v. Warren Bridge (1837) 36 U.S. (11 Pet.) 420, 518 [9 L.Ed. 773, 812]).
The untoward results of the focus on the interfering party’s motive may present themselves in individual cases in the form of arbitrary and capricious outcomes. (See Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 356.) In matters in which the trier of fact believes it has discerned good motive or at least persuades itself it has, an interfering party who has both engaged in objectively bad conduct and produced objectively bad consequences may evade liability for injury. By contrast, in matters in which it adopts a contrary view, an interfering party who has neither engaged in such conduct nor produced such consequencés may be made to pay for what is simply damnum absque injuria. In a word, much may depend on mere appearances and perceptions and on nothing more.
Such untoward results, however, will not confine themselves to individual cases but will spread generally to deter what should be encouraged (see, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 11 Minn. L.Rev. at pp. 1142-1143) and also to encourage what should be deterred. The example of the interfering party who has both engaged in objectively bad conduct and produced objectively bad consequences, but has nevertheless evaded liability, may lure others to follow in his steps, and thereby cause detriment to society as a whole. Conversely, the example of the interfering party who has neither engaged in such conduct nor produced such consequences, but has still been made to pay, may serve to turn aside others, and thereby deny the community the benefit of good acts and good effects or at least the freedom to do as one chooses when he does no injury. Moreover, the example of both may lead to further social costs, as “properly motivated actors” take “precautions ... to avoid liability” that they should not be exposed to (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 97), and actors otherwise motivated fabricate schemes to escape responsibility that they deserve.
[407]II
With all this said, we are put to the question: what are we to do about the tort of intentional interference with prospective economic advantage?
It would be unreasonable to choose to do nothing. As stated, in this regard the common law is approaching incoherence. It is not about to turn to consistency of its own accord.
It would also be unreasonable to choose abolition. Such a course commands little support among courts or commentators. That is unsurprising. Most agree that the interfering party should not be granted general immunity, but should be exposed to liability under at least some circumstances. (See, e.g., Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at pp. 302-304; Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Ore. at pp. 204-210 [582 P.2d at pp. 1368-1371]; Rest.2d Torts, § 766B, pp. 20-23; Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, pp. 1005-1031; Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1149; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 97-99; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 363-376; but see Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity, supra, 81 Colum. L.Rev. at p. 1515; Sayre, Inducing Breach of Contract, supra, 36 Harv. L.Rev. at pp. 670, fn. 22, 673, & 700.) For just as “[i]t cannot be ... a theorem of justice that liability is always just” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 337), neither can it be a principle of law that immunity is invariably proper.
In view of the foregoing, the only reasonable choice is reformulation. Indeed, an undertaking of this sort is compelled by the almost unanimous agreement, referred to above, that the interfering party should not be allowed to interfere with impunity at all times and under all circumstances.
To this end, we should clearly define the tort, basing it on stable and circumscribed ground, and eschewing the prima facie tort doctrine, the “protectionist” premise, and the interfering party’s motive. Our focus should be on objective conduct and consequences. Further, our concern should be with such conduct and consequences as are unlawful.
General considerations of a formal nature counsel us to take this path. As noted, the tort’s rules are “admittedly vague” and their applications “difficult [408]to classify.” An objective definition based on unlawfulness, cast in understandable and usable terms, would reduce or remove such weaknesses.
Specific concerns of a substantive kind operate as well. It is plain from the above discussion that the tort is based on the problematic prima facie tort doctrine. In addition, it implicates the “protectionist” premise, which carries internal inconsistency and also threatens the common law’s policy of freedom of competition and the First Amendment’s guaranty of freedom of speech, freedom of association, and right of petition. Lastly, it has a tendency to yield untoward results, both in individual cases and generally, through its focus on the interfering party’s motive. An objective definition based on unlawfulness, developed in light of such facts, would cure or mitigate the deficiency of the doctrine, lessen or eliminate the flaw attributable to the premise, and decrease or neutralize the danger to the policy and the guaranty.
Thus reformulated, the tort requires objective, and unlawful, conduct or consequences.9
It follows that the tort may be satisfied by intentional interference with prospective economic advantage by independently tortious means. (Accord, e.g., Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Or. at pp. 209-210 [582 P.2d at p. 1371]; Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, pp. 1014-1015; Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1149; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 97-99; Dobbs, Tortious [409]Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 365-366; see, e.g., Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at p. 304 [following Top Serv. Body Shop]; Rest.2d Torts, § 766B, com. e, p. 23.)
The interfering party is properly liable to the interfered-with party in such a situation. That is most plainly true when the independently tortious means the interfering party uses are tortious as to the interfered-with party himself. By the tort’s very nature, the interfered-with party is an intended (or at least known) victim of the interfering party. (See Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1132-1134 [225 Cal.Rptr. 120].) But it is true as well when the independently tortious means the interfering party uses are independently tortious only as to a third party. Even under these circumstances, the interfered-with party remains an intended (or at least known) victim of the interfering party—albeit one that is indirect rather than direct. (See Rest.2d Torts, § 767, com. c, pp. 29-30.) In this situation, the means in question are independently tortious as to the third party “if those elements that pertain to” the interfering party “are present” even if those that pertain to the third party are not: “For instance, fraudulent misrepresentations made” by the interfering party to a “third party are improper means of interference . . . whether or not the third party can show reliance injurious to himself.” (Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Or. at p. 210, fn. 11 [582 P.2d at p. 1371].)10
It also follows that the tort may be satisfied by intentional interference with prospective economic advantage through restraint of trade, including monopolization. (Accord, Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1149; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 97-99; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 367-368; see Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Or. at pp. 209-210 [582 P.2d at p. 1371]; Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at p. 304 [following Top Serv. Body Shop].)
[410]As explained, the common law’s policy of freedom of competition informs the principles that govern here. To use language written in the related context of antitrust, that policy seeks “to maximize consumer . . . welfare through efficiency in the use and allocation of scarce resources, and via progressiveness in the development of new productive techniques and new products that put those resources to better use.” (1 Areeda & Turner, Antitrust Law (1978) 1 103, p. 7; see Cianci v. Superior Court (1985) 40 Cal.3d 903, 918-919 [221 Cal.Rptr. 575, 710 P.2d 375].) To use more of such language, the policy “rest[s] ‘on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.’ ” (Marin County Bd. of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 935 [130 Cal.Rptr. 1, 549 P.2d 833], quoting Northern Pac. R. Co. v. United States (1958) 356 U.S. 1, 4 [2 L.Ed.2d 545, 549, 78 S.Ct. 514].) Restraint of trade, however, adversely affects consumer welfare. “Price is higher and output lower than they would otherwise be, and both are unresponsive to consumer preference.” (NCAA v. Board of Regents of Univ. of Okla. (1984) 468 U.S. 85, 107 [82 L.Ed.2d 70, 87, 104 S.Ct. 2948].)
The interfering party is properly liable to the interfered-with party when he restrains trade. By the tort’s very nature, as stated above, the interfered-with party is the intended (or at least known) victim of the interfering party. When the interfering party restrains trade, he causes injury to the interfered-with party at least through adverse effect on consumer welfare.11
So reformulated, the tort can be distinctly stated and consistently applied.
The independently tortious means that commonly appear in this context, including assault and battery, defamation, and fraud and deceit (Top Serv. Body Shop Inc. v. Allstate Ins. Co., supra, 283 Or. at p. 210, fn. 11 [582 P.2d at p. 1371]; Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at p. 308 [following Top Ser. Body Shop]; see Rest.2d Torts, § 767, com. c, p. 30; [411]Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, p. 1009), are well defined and long settled (see, e.g., 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 346-377, pp. 436-463 [assault and battery]; id., §§ 471-566, pp. 557-661 [defamation]; id., §§ 674-719, pp. 775-819 [fraud and deceit].) Surely, one would not be left to the scant “guidance” of the so-called “ ‘business ethics’ standard” (Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1136), which presupposes that “[t]he nature of the conduct which is acceptable today may . . . prove unacceptable tomorrow” (A.F. Arnold & Co. v. Pacific Professional Ins., Inc., supra, 27 Cal.App.3d at pp. 716-717).
Also, restraints of trade may be “measured by objective economic criteria.” (Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1104.) Decisions under federal antitrust statutes since Continental T.V., Inc. v. GTE Sylvania Inc. (1977) 433 U.S. 36 [53 L.Ed.2d 568, 97 S.Ct. 2549] prove the point beyond question. (See Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at pp. 1101-1106.)
Moreover, the tort’s internally inconsistent “protectionist” premise is now removed. The interfered-with party is not favored over the interfering party by virtue of their respective status: the former is merely protected against the latter’s use of independently tortious means and restraints of trade.
Furthermore, the tort itself does not now impair the common law’s policy of freedom of competition. By its very terms, the freedom in question does not extend to the use of independently tortious means or restraints of trade.
Neither does the tort now undermine the First Amendment’s guaranty of freedom of speech, freedom of association, or right of petition. That is because, to the extent that speech or association or petitioning is involved, the federal constitutional provision itself limits liability. (See, e.g., NAACP v. Claiborne Hardware Co., supra, 458 U.S. at pp. 907-920 [73 L.Ed.2d at pp. 1232-1241] [dealing with speech and association]; Blatty v. New York Times Co., supra, 42 Cal.3d at pp. 1045-1048 [dealing with speech]; Matossian v. Fahmie, supra, 101 Cal.App.3d at pp. 135-137 [dealing with petitioning].)12
Finally, in any action based on the tort, it is the interfered-with party as plaintiff who should bear the burden of pleading and the burden of proof as [412]to whether there has been intentional interference with prospective economic advantage either by independently tortious means or through restraint of trade by the interfering party as defendant. The general rule is that a party has the burden to plead (1 Witkin, Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions, § 133, p. 117) and the burden to prove (Evid. Code, § 500) “each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting” (ibid,.). The existence of the indicated intentional interference is obviously essential to the interfered-with party’s cause of action. There is no reason that would justify the creation of an exception to the general rule in order to shift either burden to the interfering party.13
Ill
Let us turn now to the case at bar.
In pertinent part, the superior court instructed the jury that the elements of the tort of intentional interference with prospective economic advantage were these: (1) an “economic relationship existed between” Della Penna “and various Lexus dealers, containing a probable future economic benefit or [413]advantage to” Della Penna; (2) Toyota “knew of the existence of the relationship”; (3) Toyota “intentionally engaged in wrongful acts or conduct designed to interfere with or disrupt the relationship”; (4) the “economic relationship was actually interfered with or disrupted”; and (5) the “acts of’ Toyota “caused damage to” Della Penna. As to the third element, it further instructed: “Conduct is wrongful if it is outside the realm of legitimate business transactions. . . . Wrongfulness may lie in the method used or by virtue of an improper motive.” Della Penna had objected, without success, to the requirement of “wrongfulness.” He had then successfully requested the quoted definition as most favorable to his position. The jury subsequently returned an adverse verdict. The superior court rendered judgment accordingly.
On appeal, Della Penna contended, inter alia, that the instructions were prejudicially erroneous because they required “wrongfulness.” The Court of Appeal agreed, and reversed.
Under the tort as reformulated, it is plain that the Court of Appeal erred. To be sure, the instructions appear erroneous. They did not expressly require objective, and unlawful, conduct or consequences. Neither, it seems, did they do so impliedly. Any error, however, was not prejudicial. The reason is manifest. To the extent that they were satisfied by mere “wrongfulness”— which, at Della Penna’s request, was defined under a kind of “ ‘business ethics’ standard” as behavior “outside the realm of legitimate business transactions” because of “method” or “motive”—they were satisfied by far too little. For to that extent they did not demand the use of independently tortious means or restraints of trade. It is true that their focus on motive— “[wjrongfulness may lie . . . by virtue of an improper motive”—might threaten an arbitrary and capricious outcome in a given case. The same is true of their use of the term “wrongful” and its cognates, which are inherently ambiguous (see Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503). But, in spite of the foregoing, there is simply no basis to conclude that the outcome here was either arbitrary or capricious.
IV
It is evident in the analysis presented above that, on many points, I agree with the majority’s discussion of the tort of intentional interference with prospective economic advantage and Della Penna’s claim against Toyota asserting such a cause of action.
On two major points, however, I am compelled to state my disagreement.
[414]First, I would not adopt the “standard” of “wrongfulness.” As I have noted, the term and its cognates are inherently ambiguous. They should probably be avoided. They should surely not be embraced. That is the course we followed in Buckaloo. It should be followed here as well.
Second, if I were to adopt such a “standard,” I would not allow it to remain undefined. Otherwise, our effort in Buckaloo to rationalize the governing principles would be undermined. Formerly, the interfering party as defendant was left “knowing he was entitled to some defense, but not knowing what defenses would be accounted sufficient.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 345.) Now, it appears, the interfered-with party as plaintiff will find himself in a similar position, knowing he may assert a claim, but not knowing the substance of a crucial element. This is hardly an improvement. Any definition of the “standard,” of course, should avoid suggesting that the interfering party’s motive might be material for present purposes. As I have explained, the focus on this issue is inappropriate. (See, ante, at pp. 402-406.) A position of this sort, one must acknowledge, would result in the imposition of no liability on a person who is purely, but merely, “malicious”—who acts, to quote Justice Holmes, with “disinterested malevolence” (Amer. Bank & Trust Co. v. Federal Bank (1921) 256 U.S. 350, 358 [65 L.Ed. 983, 990, 41 S.Ct. 499, 25 A.L.R. 971]). Although such a person might be held responsible in conscience, he should not be made answerable in tort. To reiterate: “The law has no roving commission to root out bad people or people whose minds may harbor bad thoughts.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 347-348.) Even if it did, “problems [are] inherent in proving motivation . . . .” (Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at p. 307.) In view of such “problems,” it has been opined that it would be “prudent for commercial conduct to be regulated for the most part” by a consideration of objectively bad conduct and consequences. (Ibid.., italics added.) To my mind, it would be even more prudent to omit the italicized qualification.14
V
Because I conclude, for the reasons stated above, that we should reverse the judgment of the Court of Appeal insofar as it reverses the judgment of [415]the superior court in favor of Toyota and against Della Penna on his claim of the tort of intentional interference with prospective economic advantage, I concur in the judgment.
The proximate historical source of the tort of intentional inference with prospective economic advantage is the decision of the Court of Appeal in Temperton v. Russell (1893) 1 Q.B. 715, which is one of the progeny of Lumley v. Gye (Q.B. 1853) 2 El. & Bl. 216 [118 Eng.Rep. 749, the proximate historical source of the related tort of intentional interference with contract (see fn. 6, post).
The tort’s ultimate origin, however, goes back further than Temperton, supra, 1 Q.B. 715. It “seems to. have developed at a very early date”—specifically, between the 14th and 16th centuries—“in cases having to do with the use of physical violence, or threats of it, to drive away customers from the plaintiff’s market, or those who might make donations to his church; but it seems to have been limited rather definitely to the use of such improper means. During the seventeenth and eighteenth centuries there were decisions involving threats and violence to frighten away prospective workmen or customers, and later there were others which gave [395]an action for spiteful shooting to scare off the plaintiff’s game. There was even a case in England in 1844 in which an actor was allowed to recover against a defendant who had succeeded in having him hissed off the stage, as a result of which he was unable to obtain further employment.” (Prosser & Keeton, The Law of Torts (5th ed. 1984) Interference With Prospective Advantage, § 130, p. 1005, fns. omitted, citing cases; see Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort (1980) 93 Harv. L.Rev. 1510,1516-1517; Rest.2d Torts, § 766, com. c, pp. 8-10.)
The First Amendment, of course, is made applicable to the states through the due process clause of the Fourteenth Amendment. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277 [11 L.Ed.2d 686, 704-705, 84 S.Ct. 710, 95 A.L.R.2d 1412].)
Compare McKay v. Retail Auto. S.L. Union No. 1067 (1940) 16 Cal.2d 311, 319 [106 P.2d 373] (implying that intentional interference with prospective economic advantage by a labor union through peaceful and truthful picketing is nontortious: the right to engage in such picketing “is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech”).
Indeed, Temperton v. Russell, supra, 1 Q.B. 715, which, as noted, is the proximate historical source of the tort of intentional inference with prospective economic advantage (see fn. 1, ante), arose out of a struggle of labor unionists and was decided adverse to their interests. (See Moore v. Cooks etc. Union No. 402 (1919) 39 Cal.App. 538, 541 [179 P. 417] [affirming a judgment enjoining unions from picketing a business: “Peaceful picketing! There is no such thing .... We are in full accord with the doctrine . . . that ‘there is, and can be, no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching.’ ”].)
In Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at page 1133, we expressed a concern that “to permit ... [a] cause of action” asserting the tort might, in certain contexts, “impair free access to the courts . . . .” Such access is protected, insofar as the states are concerned, by the Fourteenth Amendment’s guaranty of due process of law (see Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428-433 [71 L.Ed.2d 265, 272-276, 102 S.Ct. 1148]) and also by its guaranty of equal protection of the laws (see id. at pp. 438-442 [71 L.Ed.2d at pp. 279-282] (conc. opn. of Blackmun, J.); id. at pp. 443-444 [71 L.Ed.2d at p. 282-284] (conc. opn. of Powell, J.)).
The proximate historical source of the tort of intentional interference with contract is Lumley v. Gye, supra, 2 El. & Bl. 216. (See fn. 1, ante.)
The tort’s ultimate origin, however, is much older. “One form . . . can be traced back to very ancient times”—under early Roman law—“when it was not the existence of a contract which was important, but the status, or relation recognized by the law, in which the parties stood toward one another, and with which the defendant interfered. ... By the thirteenth century this Roman law idea had been taken over by the common law, but had been somewhat altered in the transition, so that it became an action for damage sustained by any master through actual loss of the services of a servant because of violence inflicted upon him. In 1349 an additional remedy was created by statute. The Black Death had left England with a great shortage of labor, and to meet the resulting agricultural crisis the famous Ordinance of Labourers was enacted, by which a system of compulsory labor was introduced. A penalty was provided to keep the laborer from running away, and a remedy was given to the employer against anyone who received and retained him in his service. The statutory action for enticing or harboring the servant which thus developed, as well as the older one for violence against him, was enforced in trespass. In time the two became intermingled and confused, so that they were no longer distinguished, and at last both were absorbed into the action on the case.” (Prosser & Keeton, The Law of Torts, supra, Interference With Contractual Relations, § 129, pp. 979-980, fns. omitted, citing cases and other authorities; see Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, supra, 93 Harv. L.Rev. at pp. 1511-1521; Rest.2d Torts, § 766B, com. b, pp. 21-22; Sayre, Inducing Breach of Contract, supra, 36 Harv. L.Rev. at pp. 663-666.)
See Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pages 507 to 508, footnote 33 (stating that “[i]n England it is doubtful whether motive has any bearing upon the legality of a harmful act, except where there is more than one participant”); Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at page 95, footnote 145 (to similar effect).
In Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33, 38 [112 P.2d 631], we disapproved Boyson on the immateriality of the interfering party’s motive. For the reasons stated in the text, I believe that we erred thereby. I recognize that the “literature on the place of motive in civil liability is larded with great names . . . .” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 347, fn. 53, citing Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor (1905) 18 Harv. L.Rev. 411, and Holmes, Privilege, Malice, and Intent (1894) 8 Harv. L.Rev. 1.) But the discussion therein is “often not aimed at the question whether motive should be considered or how it fits in the structure or method of decision.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 347, fn. 53; see Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 11 Minn. L.Rev. at pp. 1131-1132 [impliedly affirming the “principle that a lawful act should not become unlawful because of wrongful motive”]; see also Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, p. 1011 [stating that “although courts have traditionally felt free to consider the defendant’s subjective motives or purposes and such states of mind as spite or ill-will, decisions of the Supreme Court in other communicative tort [405]cases,” including New York Times Co. v. Sullivan, supra, 376 U.S. 254, and its progeny, “now raise potential Constitutional objections to this approach”].)
A question that raises itself at this juncture is whether the related tort of intentional interference with contract (see fn. 1, ante) should be reformulated to require objective, and unlawful, conduct or consequences. It need not be addressed here. That tort is simply not implicated in this action. I note in passing that either an affirmative or a negative answer might be given to the question of reformulation. An affirmative answer might be supported by reasoning such as that presented in the text. In contrast, a negative answer might be sustained on a view that the tort in question “protects society’s interest in preserving the formal integrity of contract and rests on an implicit appreciation of the fundamental, structure-giving significance of contracts in a market economy.” (Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity, supra, 81 Colum. L.Rev. at p. 1523; accord, Imperial Ice Co. v. Rossier, supra, 18 Cal.2d at p. 36; Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at pp. 1121, 1150; but see Dowling, A Contract Theory for a Complex Tort: Limiting Interference With Contract Beyond the Unlawful Means Test (1986) 40 U. Miami L.Rev. 487, 510-511 [arguing that the action for “intentional interference with business relations” is “more historically and economically sound” than that for “interference with contract” and, as such, “deserves stronger protection”].)
When the interfering party intentionally interferes by independently tortious means, the interfered-with party, of course, is entitled to compensatory damages pursuant to section 3281 et seq. of the Civil Code if he suffers harm. In view of the fact that what is protected is his prospective economic advantage (see Blank v. Kirwan (1985) 39 Cal.3d 311, 330 [216 Cal.Rptr. 718, 703 P.2d 58]), such harm should be defined as his prospective economic loss (see Youstv. Longo (1987) 43 Cal.3d 64, 71, fn. 6 [233 Cal.Rptr. 294,729 P.2d 728]). He may also be entitled to exemplary damages under certain circumstances pursuant to section 3294 et seq. of the same code.
When the interfering party intentionally interferes through restraint of trade, the interfered-with party’s entitlement to compensatory and exemplary damages is generally as stated above. (See fn. 10, ante.) But by analogy to section 4 of the Clayton Act, as construed in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. (1977) 429 U.S. 477, 489 [50 L.Ed.2d 701, 712-713, 97 S.Ct. 690], it may be argued that, in such a situation, compensatory damages should be limited to prospective economic loss (see fn. 10, ante) of the type that was intended to be prevented by, and flows from violation of, the common law’s policy of freedom of competition. Such a point is not insubstantial. Its acceptance or rejection, however, may be left to another day.
Whether the tort may be satisfied by intentional interference other than by independently tortious means or through restraint of trade is a question that should remain open. I note in [412]passing that it has been suggested that the tort should be recast solely in terms of the common law’s policy of freedom of competition. (See Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at pp. 1137-1152; but see id. at p. 1140 [recognizing that “tortious interference law is also designed to protect the security and integrity of business relationships”].) If such were to be done, a certain simplicity might be obtained—but only at a cost to other values. Moreover, competition is not a thing unto itself. Rather, it “operates within a framework defined by the general law and by social conventions.” (1 Areeda & Turner, Antitrust Law, supra, f 107, p. 16.) Thus, the simplicity obtained would not, in fact, be simple.
Another question that should remain open is the precise intent that the tort requires. The “definition of ‘intent’ continues to be disputed.” (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 65; compare, e.g., Rest.2d Torts, § 766B, com. d, p. 22 [intent to act with actual or constructive knowledge of resulting interference] with Buckaloo v. Johnson, supra, 14 Cal.3d at p. 827 [intent to interfere] and DeVoto v. Pacific Fid. Life Ins. Co. (9th Cir. 1980) 618 F.2d 1340, 1348-1349 (per Kennedy, J., applying Cal. law) [intent to harm through interference (semble)].) Substantial analysis, however, is needed before an answer may be given.
It has been argued that to impose on the interfered-with party the burden of proving the interfering party’s intentional interference with prospective economic advantage by independently tortious means “would effectively abolish the interference tort[],” at least pro tanto, because anyone “who could meet this burden could proceed under the independent action and would have no need for the interference tort.” (Dowling, A Contract Theory for a Complex Tort: Limiting Interference With Contract Beyond the Unlawful Means Test, supra, 40 U. Miami L.Rev. at p. 511, fn. 186.) That is not the case. An interfered-with party may be unable to proceed under such an “independent action” when the means in question are independently tortious only as to a third party.
Of course, to hold that the interfering party’s motive is not material for present purposes does not mean that such motive cannot amount to relevant evidence, that is, “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)