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Law Notes Aspects Of Obligations Notes

Illegality Notes

Updated Illegality Notes

Aspects Of Obligations Notes

Aspects Of Obligations

Approximately 333 pages

Aspects Of Obligations notes fully updated for recent exams in the UK. These notes cover all the major LLB aspects cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).

These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by th...

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  1. Illegality

    1. General

      1. Principle of Policy Rather Than Justice

        1. Ex Dolo Malo Non Oritur Actio

  • Holman v Johnson (1775) (HL) – goods prohibited in England were sold abroad even though seller knew they were going to be smuggled into England. Question was whether this contract could be sued upon. Lord Mansfield – the illegality of the objection is founded on public policy (ex dolo malo non oritur actio) that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal right

  • Tinsley v Milligan (1994) (HL)Lord Goff – it is a policy of justice whose application is indiscriminate and so can lead to unfair consequences as between parties to litigation. The principle allows no room for the exercise of any discretion by the court in favour of one party or the other

  • Gray v Thames Trains (2009) (HL)Lord Hoffmann – the maxim ex turpi causa is not so much a principle as a policy, and is based on a group of reasons that vary in different situations. For property and contractual rights pursuant to an unlawful transaction, to deny relief on the ground of illegality would confer an unjustified benefit illegally obtained on other. But the questions of fairness are different in different situations and contexts

    1. Legal Justification

      • Tinker v Tinker (1970) (CA)Salmon LJ –the legal justification is that the party has not come to equity with clean hands

  • Tinsley v Milligan (1994) (HL)Lord Goff –the requirements to get an equitable interest are present, but claimant is just precluded from asserting them

  • Tribe v Tribe (1996) (CA)Millett LJ –locus poenitentiae is an exception that mitgates the harshness of the primary rule1, but he must have withdrawn while purpose only in intention

    1. Justifications

  • Gray v Thames Trains (2009) (HL)Lord Hoffmann – the maxim ex turpi causa is not so much a principle as a policy, and is based on a group of reasons that vary in different situations. For property and contractual rights pursuant to an unlawful transaction, to deny relief on the ground of illegality would confer an unjustified benefit illegally obtained on other. But the questions of fairness are different in different situations and contexts

    • Goudkamp – one justification is that the claimant should be punished. However, this can be criticised because punishment is not always proportionate to the wrong. The difficulty with a deterrence argument is that people are not aware of the law. The illegality/immorality divide is too uncertain

    1. Illegality

      1. General

        • Les Laboratoires Servier v Apotex (2011) (HC) – whether or not the ex turpi causa rule applies depends on circumstances. Relevant factors are: [1] knowledge of claimant, [2] whether intention or negligence exists, [3] whether induced by defendant, [4] may not be sufficient if strict liability and claimant not aware of facts, [5] dishonest not always needed

      2. Sexual Immorality

        • Pearce v Brookes (1866) (CA) – claimant rented his coach to defendant, who was a prostitute. Claimant knew that defendant would carry on illicit activities there. Contract was tainted be immorality and was not enforced. No distinction made between illegality and immorality

        • Hegarty v Shine (1878) (CA) –claimant sued for battery as a result of contracting a venereal disease, arguing consent was vitiated. Court rejected this claim since the injury resulted from an extra-marital relationship

        • Sutton v Hutchinson (2005) (CA) – money was lent to a prostitute. Longmore LJ – it was arguable that this was tainted by illegality. Ultimately the prostitute didn’t need to rely on the illegality and the claim succeeded anyway. But it was not an obvious point

      3. Interference With Administration of Justice

        • Kearley v Thomson (1890) (CA) – solicitors were administrators and had incurred costs to be paid out of bankrupt’s estate. Claimant said he would pay this money if solicitors didn’t oppose bankrupt’s order of discharge. Before the order was made, claimant wanted money back. However solicitors had already appeared at public examination of the bankrupt. This was tainted by illegality

      4. Bribes

        • Nayyar v Denton Wilde Sapte (2009) (HC) –solicitors introduced claimants to a client, who the claimants bribed. Eventually nothing came of the introduction and claimants sued solicitors. Hamblen Jex turpi causa extends to illegal and immoral acts, and a bribe is sufficient to engage it. Not necessary to decide whether criminal law was breached

      5. Price-Fixing

        • Safeway Stores v Twigger (2010) (HC) – defendants were directors of claimants who were sued after exposing claimants to price-fixing fines. Flaux Jex turpi causa not limited to criminal acts but only seriously immoral acts enliven it. There must be an element of moral turpitude or moral reprehensibility. Here, price-fixing was enough

      6. Restraint of Trade

        • Esso Petroleum v Harper’s Garage (1968) (HL) –public policy against unreasonable restraints of trade meant contract was tainted by illegality

      7. EU Law

        • Courage v Crehan (1999) (ECJ)AG Mischo – the fact that being party to an agreement that is illegal automatically constitutes a wrong is too formalistic and doesn’t take account of individual cases

    2. Reliance Principle

      1. General

  • Tinsley v Milligan (1994) (HL) – two lesbians bought a house registered in T’s sole name so that social security department would be defrauded and benefits claimed. They split up and M claimed the other half. Held that she could rely on a resulting trust; therefore there was no need to rely on the illegality. If they had been married, presumption of advancement would have applied and the result would be different

    Lord Goff (d) –the claim should fail here because the fact that there is no presumption of advancement is irrelevant; M has not come to equity with clean hands. This is the broader principle behind the reliance principle

    Lord Jauncey – as soon as the agreement was implemented a resulting trust was made in favour of the claimant, c.f. the...

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