Illegality

Can You Answer This?

Practice with real exam questions

Reem, a seasoned draftsperson lacking a formal architecture license, negotiates a project with Sam to design a new public library. In Country X, the law explicitly requires an accredited architect’s license for any structural design related to public buildings. Reem proceeds with the contract and receives a sizeable deposit, although Sam remains unaware of any licensing rules. Sam later learns that unlicensed architectural design contravenes statutory regulations and seeks to recover his deposit. Both parties are in dispute about whether this contract is enforceable in any manner.


Which of the following is the single best statement regarding the enforceability of this contract under the doctrine of illegality?

Introduction

Illegality in contract law refers to agreements that involve actions prohibited by law or contrary to public policy, rendering such contracts void or unenforceable. It draws on core principles of legal enforceability, statutory prohibitions, and the delicate balance between private agreements and societal interests. Understanding the complexities of illegality is essential, as it impacts the validity of contracts and the rights of parties involved.

Types of Illegality

Illegality appears in contracts through two principal forms: illegality in formation and illegality in performance. Each type presents distinct legal challenges and implications.

Illegality in Formation

Contracts that are illegal in formation are void from the outset because their purpose or objective is unlawful. This occurs when an agreement involves acts that are prohibited by law or offend public policy.

Key aspects include:

  1. Unlawful Purpose: The contract’s very aim is illegal, such as agreements to commit a crime or fraud.

  2. Void Ab Initio: Such contracts are considered null from the beginning, as if they never existed in the eyes of the law.

  3. No Legal Remedy: Parties cannot seek legal enforcement or restitution under these contracts due to the principle ex turpi causa non oritur actio (no action arises from a dishonorable cause).

Example: An agreement between two parties to fix prices in violation of competition laws is illegal in formation and thus void.

Illegality in Performance

Illegality in performance arises when a contract, lawful at formation, becomes illegal due to the manner in which it is performed or due to changes in the law.

Essential considerations include:

  1. Lawful Formation, Unlawful Performance: The contract was valid when made but is carried out in an illegal way.

  2. Possibility of Severance: Courts may sever the illegal part of the performance if the remainder of the contract can stand independently.

  3. Judicial Discretion: Judges assess the extent of illegality and determine appropriate remedies based on fairness and policy considerations.

Example: A freight contract where the carrier agrees to transport goods but, during performance, illegally smuggles prohibited items.

Statutory Illegality

Statutory illegality occurs when a contract violates specific statutory provisions. The statute may expressly or implicitly prohibit certain types of contracts or contractual terms.

Important points include:

  1. Express Prohibition: Statutes may explicitly declare certain contracts illegal, such as agreements made without required licenses.

  2. Implied Prohibition: Even if not expressly forbidden, a statute's purpose may imply that certain contracts should be deemed illegal.

  3. Legal Consequences: The effect of statutory illegality can vary; the contract may be void, unenforceable, or illegal in part.

Example: Contracts for unlicensed medical services violate statutory requirements and are therefore illegal and unenforceable.

Common Law Illegality and Public Policy

At common law, contracts may be deemed illegal if they are contrary to public policy, even if no statute explicitly prohibits them. Public policy considerations aim to protect the interests of society at large.

Significant areas include:

  1. Restraint of Trade: Contracts that unduly restrict a person's freedom to work or trade can be illegal unless they are reasonable and protect legitimate interests.

  2. Corruption of Public Life: Agreements that interfere with the administration of justice or public duties are illegal.

  3. Immorality: Contracts promoting immoral conduct may be deemed illegal.

Case Reference: In Egerton v Brownlow (1853), the court held that agreements contrary to public policy are void.

The Modern Approach: Patel v Mirza

The landmark case Patel v Mirza [2016] UKSC 42 reshaped the approach to illegality in contract law by emphasizing a flexible, policy-based analysis rather than rigid rules.

Key elements of the decision:

  1. Policy-Centered Analysis: Courts consider the policies of the law violated and the proportionality of denying enforcement.

  2. Trio of Considerations:

    • Intent of the Prohibition: Assess the purpose of the prohibition that has been violated.

    • Other Policies: Examine any additional public policies that may be affected.

    • Proportionality: Determine whether denying the claim would be a reasonable response.

  3. Discretionary Judgment: Judges have greater leeway to reach fair outcomes based on the circumstances.

Application Example: In a case where parties entered into an agreement involving insider trading (illegal activity), the court would weigh the policies behind insider trading laws, the impact on market integrity, and whether denying restitution serves justice.

Severance and Partial Enforcement

When a contract contains both legal and illegal provisions, courts may apply the principle of severance to enforce the lawful parts.

Principles guiding severance:

  1. Blue Pencil Test: If the illegal parts can be removed without altering the fundamental nature of the contract, the remainder may be enforced.

  2. No Rewriting: Courts will not add or modify terms; they only remove offending provisions.

  3. Consistency with Public Policy: Enforcing the remaining contract must not contravene public policy.

Analogy: Severance is akin to pruning a tree by cutting away diseased branches to preserve the health of the tree.

Case Reference: In Sadler v Imperial Life Assurance Co, the court removed unreasonable restrictive covenants, allowing the reasonable parts to stand.

Analyzing Practical Scenarios

Understanding illegality requires applying legal principles to real-world situations.

Scenario 1: Construction Contract Without Permits

A builder enters into a contract to construct a building but commences work without obtaining the necessary planning permissions, in violation of statutory regulations. The contract becomes illegal in performance due to the unlawful manner of execution. Courts would consider whether the illegal performance taints the entire contract or if lawful parts can be severed.

Scenario 2: Overly Broad Non-Compete Agreement

An employment contract includes a non-compete clause that restricts an employee from working in the industry worldwide for five years after leaving the company. This restraint may be considered unreasonable and contrary to public policy. Courts may sever the excessive parts, enforcing the clause only to the extent that it is reasonable in terms of duration and geographic scope.

Conclusion

The modern approach to illegality in contract law emphasizes a detailed, policy-driven analysis, as established in Patel v Mirza. This framework interacts with statutory provisions and common law principles, requiring careful consideration of the purposes of legal prohibitions and the implications of enforcement or non-enforcement of contracts.

Understanding the interplay between illegality in formation and performance is essential. Illegality in formation renders a contract void from the outset due to an unlawful purpose, while illegality in performance arises when lawful contracts are performed in an illegal manner.

Statutory illegality requires attention to specific legislative provisions that may expressly or implicitly prohibit certain contracts. Courts must interpret these statutes and their effects on contractual validity.

Common law illegality involves assessing contracts against public policy considerations, such as restraints of trade or interference with justice. The principles of severance allow courts to enforce lawful parts of a contract while excising the illegal components, provided the essence of the agreement remains intact.

By applying these principles to practical scenarios, one can discern how illegality affects contractual rights and obligations. For instance, contracts tainted by illegal performance may still be partially enforceable if the illegal aspects can be severed without undermining the contract's primary purpose.

Overall, illegality in contract law requires a comprehensive analysis of legal principles, statutory mandates, and policy considerations to determine the enforceability of agreements and the appropriate judicial response.

The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Barbri SQE
One-time Fee
$3,800-6,900
BPP SQE
One-time Fee
$5,400-8,200
College of Legal P...
One-time Fee
$2,300-9,100
Job Test Prep
One-time Fee
$90-350
Law Training Centr...
One-time Fee
$500-6,200
QLTS SQE
One-time Fee
$2,500-3,800
University of Law...
One-time Fee
$6,200-22,400

Note the above prices are approximate and based on prices listed on the respective websites as of December 2024. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

Practice. Learn. Excel.

Features designed to support your job and test preparation

Question Bank

Access 100,000+ questions that adapt to your performance level and learning style.

Performance Analytics

Track your progress across topics and identify knowledge gaps with comprehensive analytics and insights.

Multi-Assessment Support

Prepare for multiple exams simultaneously, from academic tests to professional certifications.

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal