Hard to disagree with your comments on Tribe.

What follows is a hunch. I suspect however that there are those,
particularly those who contemplate "white collar crimes" such as
insider trading, who may well be aware of the law's attitude to
illegal transactions. If I am right about that, then deterrants
becomes less fanciful. It would require singular honour among insider
traders for X to give money to Y to put through such a trade, if he
knew that if Y did not repay him, he (X) would have no recourse.
Moreover, I suspect that the disappointed would be insider trader is
less likely to be prosecuted for an attempt than you would be if it
were to come to light in court that you had engaged the services of an
asassin.

On 8/12/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
> Tribe v Tribe is, if anything, even worse. There the illegal purpose had in
> fact been fulfilled. The father's purpose in putting the shares into his
> son's name was to hide the asset from his creditors in case he went into
> bankruptcy. It did not form part of the father's purpose that he in fact
> went into bankruptcy. Indeed, the father no doubt preferred not becoming
> bankrupt, and not in fact deceiving anyone. The only undone part of the
> illegal transaction was the return of the shares by the son: which the court
> compelled to be done.
>
> Again, a case where the court illegitimately ducked what the rule requires
> because they didn't like treating the (dishonest) old man unfairly vis a vis
> his (dishonest and disloyal) son.
>
> The Latin is unfortunate, as the rule is nothing to do with penitence.
>
> If I pay a hitman a sum to kill my rival, if the rival dies before the hit
> is carried out, do I now get to claim my money back on the basis of
> 'withdrawal'?
>
> I very much doubt whether this part of the civil law has any discernible
> impact on the behaviour of criminals, but who knows? I have heard it argued
> that it is a good thing that this area is an uncertain mess because that way
> criminals can't be sure how to structure their transactions in a way so as
> to avoid the rule.
> ________________________________________
> From: Enrichment - Restitution & Unjust Enrichment Legal Issues
> [ENRICHMENT@LISTS.MCGILL.CA] on behalf of Gerard Sadlier
> [gerard.sadlier@GMAIL.COM]
> Sent: 12 August 2014 17:22
> To: ENRICHMENT@LISTS.MCGILL.CA
> Subject: Re: [RDG] Illegality Again
>
> The decision of the majority seems required by Tribe v Tribe [1996] Ch 107.
>
> In Tribe, there was no true repentance, in the sense of remorse, either.
>
> For myself, I agree that there is a lot to be said for simply refusing
> relief in both cases on the basis that this will deter at least some
> such transactions.
>
> On 8/12/14, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
>> ---------- Forwarded message ----------
>> From: Robert Stevens <robert.stevens@law.ox.ac.uk>
>> Date: 12-Aug-2014 9:56 am
>> Subject: Illegality Again
>> To: Obligations Discussion Group <odg@law.ox.ac.uk>
>> Cc:
>>
>> A decision of the Court of Appeal in Patel v Mirza.
>> http://www.bailii.org/ew/cases/EWCA/Civ/2014/1047.html
>>
>> The case concerns a claim to recover a sum that had been paid in order to
>> make money through insider trading that never actually occurred.
>>
>> So, one of the conspirators says he has access to meetings between the
>> bank
>> RBS and the UK government when the former was in crisis. He says he can
>> make
>> money on the spread betting market by using this info to place bets on
>> RBS'
>> share price. A clear example of the crime of insider trading. The claimant
>> hands over cash to facilitate the bets, but the meetings, and hence the
>> bets, never occur. Claimant now wants his money back.
>>
>> CA unanimously hold that the money is recoverable.
>>
>> In my view, this result is clearly wrong, but then I don't approve of the
>> recent 'developments' in the law.
>>
>> The claimant relies on his own illegality in making the claim. He even
>> pleaded it. On its face then, following Tinsley v Milligan, the
>> requirement
>> of legal coherence means the claim fails.
>>
>> The claimant then relies upon an exception to this rule, the locus
>> poenitentiae doctrine. Rimer and Vos LJJ both consider that the case fell
>> within that exception, and that it did not matter that the claimant's
>> withdrawal occurred after the scheme became impossible to carry out.
>>
>> But this seems obviously wrong. If the exception exists, we have it to
>> encourage people to withdraw from illegal transactions. If they cannot
>> recover back their money there is no such encouragement, and they may as
>> well carry it through. This is nothing to do with penitence, as Timer LJ
>> thinks.
>>
>> If, for example, I pay a hitman to kill a colleague of mine in order to
>> further my career, but then discover that my career will prosper even more
>> if he lives, I should be able to recover my money before the murder,
>> regardless of my being wholly impenitent. We don't wish to discourage
>> withdrawal. But in this case the crime was no longer capable of being
>> committed, there was nothing to draw back from.
>>
>> Gloster LJ gives additional and even more radical reasons for the result.
>> So, rejecting the Tinsley v Milligan approach she engages with a wide
>> ranging discussion of whether the policy underlying the illegality of
>> insider trading is or is not engaged, concluding that it is not. She
>> considers it important that the claimant was not seeking to enforce the
>> agreement, but recover back money paid.
>>
>> Somewhat oddly, the decision in Parkinson v Royal College of Ambulance, on
>> facts that as far as I can see are materially identical, is not cited by
>> anyone. Presumably it is no longer good law.
>>
>> The problem with the illegality principle is that it requires the court to
>> do injustice. As between claimant and defendant, it was clearly fair that
>> the money was repaid. It takes a certain firmness from a judge to say that
>> regardless of what fairness between the parties requires, the coherence of
>> the law requires a different conclusion.
>>
>> If this is not overturned, then I accept that my recently expressed view
>> that this is not a matter worth referring back, with heavy heart, to the
>> Law
>> Commission was wrong.
>> Rob
>>
>
> ====
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