Date: Wed, 18 Jan 2006 13:57:41 +0200

From: Daniel Friedmann

Subject: Illegal contracts and restitution

The difference between the case in which A pays B to hire C to kill A (or simply A pays B to kill A) and that in which and A pays B to kill C, is that in the latter category C (the intended victim) may have a right in restitution to recover the money paid to B for this purpose. I discussed a similar situation in 80 Columbia L. Rev. 504, 556 (1980). The case in which A pays B to kill A (or to hire C to do it) is one of attempted suicide.

Andrew Burrows rightly points out the possibility that the parties are not in pari delicto. This seems at least prima facie the situation, in which case restitution to A should be granted even if B committed the illegal act (its commission cannot be regarded as consideration that precludes restitution cf. Hermann v. Charlesworth).

Daniel Friedmann

----- Original Message -----
From: "Duncan Sheehan (LAW)"
To: "'Hector MacQueen'"; "'Jason Neyers'"
Sent: Wednesday, January 18, 2006 11:42 AM
Subject: ODG: RE: 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.

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