Category Archives: Public policy
Daniel Pi, ‘Honor Among Thieves: Enforcing Criminal Contracts’
ABSTRACT Contracts involving promises to commit criminal acts are ordinarily unenforceable. Yet nonenforcement does not fully deter incentives to form criminal agreements. This Article demonstrates that partial enforcement can generate greater deterrence incentives by disrupting the trust relationship between parties to a criminal agreement, effecting superior deterrence. Specifically, by allowing promisors and denying promisees the […]
Chao Xi, ‘Contract Law and Financial Regulation in China: An Illegality Perspective’
ABSTRACT The dynamics between Chinese contract law and regulatory legislation have most prominently played out in the past four decades in respect of the question of what counts as an illegal contract or a contract that is contrary to public policy. This article depicts the unique evolutionary trajectory of the Chinese law on illegality and […]
Clement Salung Petersen, ‘The Public Policy-Implementing Role of Nordic Courts in Civil Dispute Resolution’
ABSTRACT This chapter explores the role of Nordic courts in safeguarding certain public values and interests, whether substantial or procedural, in the three types of civil dispute resolution that can potentially lead to state enforcement, namely civil litigation, arbitration and mediation. First, it shows how Nordic courts in civil litigation may take on an ‘active […]
Solomon Faakye, ‘Right to Restitution under Illegal Contracts: Seeking Clarity in Ghana’
ABSTRACT The law on the availability of restitution in the context of illegal contracts is unclear. Several irreconcilable approaches have been proposed at common law in search of a solution to the question of whether or not a party to an illegal contract who has benefitted from the contract has any right to restitution. This […]
‘Judge Refuses To Strike Out Action On The Basis Of “Illegality”: The Claimant Was Not Capable Of Committing “Criminal” Acts’
“For the second time today I am writing about a case where the court has refused to strike out a statement of case. In Lewis-Ranwell v G4S Health Services (UK) Ltd and others [2022] EWHC 1213 (QB) Mr Justice Garnham refused to strike out a case where the defendant alleged illegality. The claimant had been […]
Anthony Sebok, ‘Going Bare in the Law of Assignments: When is an Assignment Champertous?’
ABSTRACT This Article is a response to David Capper’s ‘The Assignment of a Bare Right to Litigate’, in which he reviews the evolving approach to champerty in Ireland and the United Kingdom. Capper’s paper makes two claims. First, that maintenance is less offensive to the law of champerty than the assignment of ‘bare’ claims. Second, […]
Mitchell McInnes, ‘Illegality and Unjust Enrichment’
ABSTRACT Within private law, the defence of illegality has long been a source of confusion and injustice. The problems have been particularly acute within the law of unjust enrichment. The pendulum has swung from one extreme to another. During the 19th century. an unforgiving conception of illegality defeated restitutionary claims on the basis of relatively […]
Janet O’Sullivan, ‘Illegality and Tort in the Supreme Court’
“The effect of illegality on claims in private law is an exceptionally knotty problem. In Patel v Mirza [2016] UKSC 42, an unjust enrichment claim, the Supreme Court (following the Law Commission’s nudge) adopted a discretionary approach, balancing relevant public policy concerns to determine whether an illegality defence applied. Lord Toulson identified a ‘trio of […]
Liron Shmilovits, ‘When is illegality a defence to a tort?’
ABSTRACT The illegality defence is an important element of private law, but its operation has been unpredictable. In Patel v Mirza, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel and Co v Grondona. I […]
James Fisher, ‘Gray areas in tort: Illegality and authority after Patel v Mirza’
ABSTRACT This comment describes and critiques the decision of the United Kingdom Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust. It considers in particular the Court’s position on the effect of Patel v Mirza on previous illegality case law. It analyses the enduring tensions between Patel and the House of Lords’ decision […]