The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as agreed under a forfeiture clause.
Held: The jury having found that the defendant hired it for the purpose of prostitution and that the plaintiff knew that this was her purpose, the contract was unenforceable as being for that unlawful purpose, even though the plaintiff was not to receive directly any payment from the services provided by the defendant.
Pollock CB said: ‘I have always considered it as settled law, that any person who contributes to the performance of an illegal act by supplying a thing with the knowledge that it is going to be used for that purpose, cannot recover the price of the thing so supplied. If, to create that incapacity, it was ever considered necessary that the price should be bargained or expected to be paid out of the fruits of the illegal act (which I do not stop to examine), that proposition . . has now ceased to be law.
Nor can any distinction be made between an illegal and an immoral purpose; the rule which is applicable to the matter is, Ex turpi causa non oritur actio, and whether it is an immoral or an illegal purpose in which the plaintiff has participated, it comes equally within the terms of that maxim, and the effect is the same; no cause of action can arise out of either the one or the other . .
If, therefore, this article was furnished to the defendant for the purpose of enabling her to make a display favourable to her immoral purposes, the plaintiffs can derive no cause of action from the bargain.’
Baron Martin doubted whether that this principle would apply if it was not entirely sure that the money or goods forming the object of the contract would be used for an illegal purpose
Pollock CB, Pigott, Bramwell, Martin BB
(1866) LR 1 Ex 213, [1861-73] All ER 102, (1866) 30 JP 295, 14 LT 288, 35 LJEx 134
England and Wales
Cited – 21st Century Logistic Solutions Limited (In Liquidation) v Madysen Limited QBD 17-Feb-2004
The vendor sold computers to the defendant, intending not to account to the commissioners for the VAT. The seller went into liquidation, and the liquidator sought payment. The purchaser had been unaware of the intended fraud and resisted payment. . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Shaw v Director of Public Prosecutions HL 4-May-1961
Offence of Conspiracy to corrupt public morals
The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Cited – J M Allan (Merchandising) Limited v Cloke CA 1963
the plaintiff rented to the defendant a roulette table, together with copies of a book of rules, for use in a club. The rules stated that a charge of sixpence was payable on any bet before the croupier spun the wheel. Using a roulette table in a . .
Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Cited – Anglo Petroleum Ltd and Another v TFB (Mortgages) Ltd CA 16-May-2007
Challenge to validity of mortgages executed by company – allegation that funds used for financial assistance in purchase of own shares – effect on loan.
Toulson LJ approved the case of Waugh v Morris, saying: ‘130 years later, this statement of . .
Mentioned – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – A L Barnes Ltd v Time Talk (UK) Ltd CA 26-Mar-2003
The claimant appealed a costs order which had denied him the substantial part of his costs despite feeling that he had won the case. The court had said that no order should be made for payment of the expert witness’ costs of either party.
Cited – Mahonia Ltd v JP Morgan Chase Bank ComC 30-Jul-2003
Enforceability of documentary credits – strike out of defence refused. . .
Cited – Parkingeye Ltd v Somerfield Stores Ltd ChD 18-Mar-2011
The claimant said that the defendant had wrongfully terminated its contract for management of parking at the defendant’s supermarkets. The defendant replied that the contract was unenforceable for illegality. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.194058