R A Buckley, ILLEGALITY AND PUBLIC POLICY London: Sweet and Maxwell (www.sweetandmaxwell.co.uk), The Contract Law Library, 2nd edn, 2009. xliii + 350 pp. ISBN 9781847032966. £216.

Document Cited authorities (7) Cited in Related
AuthorMark Godfrey
DOI10.3366/elr.2011.0074
Published date01 September 2011
Date01 September 2011
Pages505-507

The effect of illegality on a contract is one of the more complex topics in contract law. As Professor Buckley notes, “the underlying issues in this general area remain as intractable as ever” (vii). Systematic analysis is especially lacking in decided cases, which consequently provide an uncertain guide. However, academic analysis and textbook presentations also struggle to overcome the difficulty of the area. This arises chiefly from the fact that it cannot be approached simply by applying legal rules and principles, sufficient thought this may be in some cases, such as many involving express statutory illegality. Instead it more typically requires integration of considerations of law and public policy in testing the private relations of contracting parties against the public interest. But this requirement is intensely problematic because, as Professor Buckley observes, “[t]he underlying conflict between public and private interest is not readily conducive to the formulation of clear rules and principles, given especially the range and complexity of the differing types of situation in which such conflict can arise”. Buckley points out that “[a]s a result, judgments in illegality cases are often expressed in the familiar language of the general law of contract combined, somewhat uneasily, with well-worn phrases and maxims which are intended to highlight the public policy dimension”. However, “[u]nfortunately, the underlying issues do not readily lend themselves to conventional contractual analysis, with its inevitable preoccupation with the parties’ dealings with each other as distinct from wider considerations” (1). The result is that the courts have tended to avoid open acknowledgement of those wider considerations, and the exercise of discretion which is involved, preferring to maintain the appearance of applying all-embracing maxims and strict rules in a more mechanistic fashion. But, as Buckley convincingly demonstrates, this introduces significant distortion into the law, with the courts “invoking unduly technical reasoning and adopting rather tenuous conceptual distinctions” (12–13). As a consequence, the law in this area has tended towards the obscure and unintelligible, and very important decisions, such as that of the House of Lords in Tinsley v Milligan[1994] 1 AC 340 (described by Buckley as “a serious setback” at 324), as well as highly influential contributions by judges such as Lord Devlin in St John Shipping Corporation v Joseph Rank Ltd...

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