ILLEGALITY AND THE CONFLICT OF LAWS
| Date | 01 March 1958 |
| Published date | 01 March 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00464.x |
| Author | F. A. Mann |
ILLEGALITY AND THE CONFLICT OF LAWS
A
UNANIMOUS
House of Lords (Lords Simonds, Reid, Cohen, Keith
and Somervell) has affirmed the decision
of
the Court of Appeal
in
Regazzoni
v.
K.
C.
Sethia,
Ltd.l
It
is, therefore,
no
longer
useful to reopen the question, asked earlier
in
these pages,2 whether
English law has taken a dangerous or
a
desirable course. Rather
it
is necessary to inquire what
it
is that the House
of
Lords has
laid down as a legal principle for the guidance of future generations.
The facts,
it
will be remembered, were of the utmost simplicity.
Under
a
contract governed by English law the English seller agreed
to sell to the
Swiss
buyer a quantity of Indian jute bags c.i.f.
Genoa. The buyer intended, to the seller’s knowledge,
to
reship
the goods at Genoa to South Africa. Indian law prohibited the
export of any goods which
6c
are destined for
”
South Africa or
“in respect of which the Chief Customs Officer is satisfied that
the goods, although destined for a port or place outside the Union
of
South Africa, are intended to be taken
to
the Union of South
Africa.” Relying
on
this provision
of
Indian law the seller success-
fully contended that the contract was contrary to English public
policy.
1.
The House approved the decision of the Court of Appeal
in
Foster
v.
Dris~oll,~
“the correctness of which is not to be
doubted.”& The
ratio decidendi
of that case has been variously
stated and the House has not reformulated it. One view of the
decision is that an English contract is illegal and void “if the
real object and intention of the parties nccessitatcs them joining
in an endeavour to perform in
a
foreign and friendly country some
act which is illegal by the law of such country.”5
No
rule
so
stated was referred to by the House.
It
would not have covered
the point in issue, because the contract between the parties did
not
‘‘
necessitate
”
them
“
joining
”
in ap act to be done
‘‘
in
”
India. What was approved by Lord Reid
a
and Lord Keith was
the wider principle which was expressed by Lawrence
L.J.B
and
according to which
“
a partnership formed for the ,main purpose
of deriving profit from the commission of a criminal offence in
a foreign and friendly country is illegal.” Or, in the words of
1
p9571
a
AH
E.R.
BG.
2
(1956) 19
M.L.R.
52.9.
[1929]
1
K.B.
470.
[19571
3
All
E.R.
286,
at
p.
292,
per
Lord
Simonde.
[1929]
1
K.B.
470,
at
p.
521,
per
Snnkey
L.J.
6
At
p.
294.
7
At
p.
295.
8
At
p.
510.
180
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