Date: Wed, 18 Jan 2006 09:42:30

From: Duncan Sheehan

Subject: Illegal contracts and restitution

There are a number of possibilities, leaving aside the criminal aspect for the moment - what I know about criminal law can be written on the back of a postage stamp.

A pays B to hire C to kill A. I'm not sure that in essence there can be a distinction made between that case and A pays B to kill C, or even A pays B to kill B. Indeed the Times said at one point that in desperation A asked B to do the deed himself. The reason we don't allow hitmen to succeed is that we value human life. I would think that all these contracts were illegal (and the Times utterly wrong!). Illegal contracts are not (at least in English law; I know nothing about Scots law) monolithic things - all with the same effects, but specific performance would be out of the question. I would think damages too; how are we supposed to put A in the position he would have been in had the contract been carried? I don't see how money can put you in the equivalent position of being dead.

As for restitution for failure of consideration, there's a kink on the facts in the Times. A was apparently depressive, hence the desire to be killed. If A was in fact mentally ill, that raises the question whether B took advantage (undue influence as well as fraud?). There's also a capacity question isn't there - that doesn't impact on the illegality as such but may well matter. We know that property can pass under an illegal contract, so all other things being equal property in the money passes to B. If A is incapax, and completely doolally, that transfer may be void, which would presumably give A a better claim. This is more likely if we're talking really large amounts, and in fact according to the Times we're talking tens of thousands of pounds. I wonder whether on any facts that are likely to arise you need to rescind for fraud.

From the other perspective - the recipient - I think Hector MacQueen must be right.

Duncan

Dr Duncan Sheehan
Lecturer in Law
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

-----Original Message-----
From: Hector MacQueen
Sent: Tuesday, January 17, 2006 8:26 PM
To: Jason Neyers
Subject: ODG: Illegal contracts and restitution

Dear Jason

Today's London Times contains a story under the headline, "A contract is still a contract - even if it is a contract to kill". The gist of the story is that a depressive woman paid a man a total of £20,000 over a series of transactions, the deal being that he would find a hitman to kill her. He didn't do this, and kept the money instead. She sued him for breach of contract (it says in The Times), and yesterday Maidstone Crown Court ordered him to pay her, not the £20,000, but £2,000. It seems, on closer inspection of the story, that the case was actually a criminal prosecution, not a civil action, and that the conman was jailed, the £2,000 being paid under a compensation order made by the court. None the less, from an obligations point of view, it's surely an interesting set of facts.

When I lecture first year law students on illegal contracts, I always give the hired assassin as the easy example of the person whose contract can't be enforced by either party; and probably restitution of any advance payments made won't be ordered either. But here the assassin is, so to speak, one step removed from the contracting parties. Can the would-be victim (another distinction from the usual case, because she is a party to the contract) enforce the deal, either by way of specific performance (surely unlikely) or a claim for damages? If so, could that include emotional trauma damages? Can she alternatively seek restitution if the contract is void or voidable for fraud? The latter seems more attractive to me than the other two possibilities.

From the other perspective (the potential recipient of the money), what happens if he finds a hitman but then the would-be victim doesn't pay up (and, say, perhaps, that he has already paid the hitman)? Presumably unenforceable and no question of restitution?

Anyway, my conclusion is that the Times headline is wrong in law. What do others think?

<<<< Previous Message  ~  Index  ~  Next Message >>>>>