Ex Turpi Causa – When Latin Avoids Liability
| Published date | 01 May 2014 |
| Date | 01 May 2014 |
| Author | Jonathan Mance |
| Pages | 175-192 |
| DOI | 10.3366/elr.2014.0203 |
The maxim
The brocard, as Lord Hunter called it, is of course an invitation to fast-thinking of the type that the Nobel prize-winner Daniel Kahnemann has in his book
D Kahnemann,
[2009] UKHL 33, [2009] 1 AC 1339, para 30.
So intractable is its operation that the English Law Commission, after writing several penetrating reports, appears to have given up on reform (save in the area of trusts). It justified this by a belief that the case law already evidenced an incremental trend towards a situation in which, instead of applying rigid rules, the courts would consider each case to see whether the application of the maxim was justified on the basis of its underlying polices. The Law Commission referred in this connection to
[2009] UKHL 39, [2009] 1 AC 1391.
It saw the latter case as “more difficult”, but “not inconsistent” with its beliefLaw Commission, Report on
B J Rodger “Defences to Delictual Liability” in
W M Gloag and R C Henderson,
Underlying the maxim is an understandable reluctance of courts to become involved in giving legal effect to illegal transactions. In
Let me at this point go back to the beginning. A good start is the case of
In the Highwaymen's case the sophistry of the pleading could not hope to conceal the nature of the actual dealings. And it seems unremarkable that a claim is barred where, and to the extent that, the claimant is seeking to enforce a transaction to his profit by a positive plea of illegality in support of his claim Whatever the state of account between two highwaymen, the law must disclaim involvement. But the maxim is not limited to such extreme cases, or it would seldom trouble the courts. To take another famous example of its application, in
(1866) LR 1 Ex 213.
a carriage owner sued a prostitute for the hire of, as well as compensation for returning damaged, a brougham which he knew would be used for unlawful soliciting. He could not recover either the hire or any compensation. There was nothing wrong with the contract on its face, but it was unenforceable by either side because of their shared purpose. It was open to the prostitute to rely on the illegality to defeat the claim.In the light of what I have said thus far, it is a little surprising to find the House of Lords in
Turning to the effects of the maxim, a basic feature is that, whenever it applies, the law washes its hands and any loss lies where it falls. This can lead to haphazard results. The prostitute may have benefited greatly by use of the brougham, but she paid no hire. There was no question of putting the parties back in to the position in which they were in before they made the contract, or ordering restitution of any benefits received. A party may be left with a windfall; whether in the form of property or the use of property received, release from contractual performance, or the avoidance of liability for the consequences of negligence.
This was acknowledged as long ago as the eighteenth century by Lord Mansfield in
The objection, that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this;
The principle therefore applies irrespective of what might otherwise appear as the equities between the parties (though even this conclusion is qualified in cases where the law regards the parties as not having been
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