Good question about backup contracts.

If a Seller executes a backup contract, is that tortuous interference in the primary contract?
This is a situation that both the original buyer, the backup buyer and the seller as well as all the agents involved need to be addressing with their attorneys. The one obvious answer though is “Not always.” If it were always tortuous interference for a backup contract to be executed, there would be a lot less backup contracts (approaching zero!).

The law is going to vary by jurisdiction, which is one reason that an answer on a website is no substitute for speaking with local counsel, but here’s some interesting information on tortuous interference:
The courts have further defined the claim of tortuous interference to require proof that the defendant did the following: (1) acted improperly and without privilege; (2) acted purposefully and maliciously with intent to injure; (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff some financial injury…
Defenses to tortuous interference claims include various privileges, such as the privilege of fair competition. It has long been recognized that fair competition is always legal.
One thing is clear – the seller can’t have committed tortuous interference. The seller might have committed breach of contract, of course.

If the seller didn’t breach the primary contract, for example if the financing contingency date had passed with no loan commitment, it would be hard to maintain that there was an interference by the backup buyer. It’s hard to claim interference at that point, if the primary contract is no longer valid. If the backup buyer convinced the seller to exercise a contingency to void the primary contract, maybe.
Those elements of intent, purposefulness and malice are going to be tough as well. Plus, a backup contract buyer is likely to be covered by some of the defenses – not least the fair competition defense mentioned. Of course, a good attorney might well be able to convince a court otherwise.

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