Date: Wed, 18 Jan 2006 10:39:04

From: Andrew Burrows

Subject: Illegal contracts

It seems to me that Andrew Tettenborn is correct that, from the perspective of the civil law of restitution / unjust enrichment, the interesting point in the case is that the hitman fraudster was ordered to pay compensation of £2,000 to the depressive woman. We are not told the basis for that but if one assumes that the thinking behind it was that the depressive woman should get back some of the money she paid, our question is whether that can be justified by normal civil law principle. Parkinson v College of Ambulance [1925] 2 KB 1 would indicate that, even though defrauded, the depressive woman is barred from restitution by the illegality which was not masked by the fraud. In the old forbidden language, the parties are in pari delicto. But as Duncan Sheehan says, there could be a ground for restitution (eg exploitation of her mental weakness or incapacity) which would override the illegality (ie the parties would then be non in pari delicto). But we simply do not know enough about her mental state to say whether the latter is the best analysis.

Andrew Burrows

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