Defence of Illegality of contract failed
Under a voyage charterparty, for a voyage from Trouville to London, pressed hay was to be loaded at Trouville and brought to London where it was to be taken from the ship alongside. The charterer’s agent told the master that the consignees under the bills of lading would require the hay to be delivered to them at a particular wharf in Deptford Creek and that he should proceed there on his arrival in London, which the master promised to do. On arriving in the Thames, the master learned for the first time that by an Order in Council France had been declared to be an infected country, and it was illegal to land in Great Britain any hay brought from that country. The Order had been made and published before the charter party was entered into, but neither the master of the ship nor the charterer’s agent was aware of it. On learning of the Order, the master refrained from landing the cargo at the wharf. After some delay, during which the contractual number of laydays elapsed, the charterer received the cargo from alongside the ship into another vessel and exported it. The owner claimed for detention. The claim was resisted by the charterer on the ground that the contract was unenforceable for illegality, because the purpose of the contract was the delivery of the consignment to London, which was prohibited by law.
Held: The defence failed. Where the party or parties were not aware that the intended performance was illegal and, on discovery, are subsequently content that the contract be performed in a legal manner within its terms, the contract is enforceable.
Blackburn J distinguished the case before him from one where the contract could not be performed without illegality or which was entered into for the object of satisfying an illegal purpose. He observed that all that the owner had bargained for, and could properly be said to have intended, was that on the ship’s arrival in London his freight should be paid and the hay taken out of the ship. As to an illegal object, he never contemplated that the charterer would violate the law. He contemplated that the charterer would land the goods and thought that this would be lawful; but if he had thought of the possibility of the landing being prohibited, he would probably, and correctly, have expected the charterer not to break the law. He continued: ‘We quite agree, that, where a contract is to do a thing which cannot be performed without a violation of the law it is void, whether the parties knew the law or not. But we think, that in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law; and, if this be so, the knowledge of what the law is becomes of great importance.’
Blackburn J
(1873) LR 8 QB 202
Contagious Diseases (Animals) Act 1869
England and Wales
Cited by:
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Contract, Transport
Leading Case
Updated: 01 November 2021; Ref: scu.536187