Dear Jack and Ger,

The way I see it there are in fact two problems with the contractual angle. The first is the problem referenced re: consideration. Why would the promise to pay be binding at all in such a case if the consideration is illegal? The other arises from the (not unrelated) idea that the provision of services usually conditions payment for that service. At the very least you are giving rise to a situation in which the failure to perform as promised should provide a defense against the claim for payment under an otherwise valid contract.

In either case it seems difficult to avoid commodification so long as we remain within the contractual framework.

Best,

Stéphane

-----Original Message-----
From: Gerard Sadlier <gerard.sadlier@gmail.com>
Sent: Thursday, August 10, 2023 2:26 PM
To: Jack Enman-Beech <jenmanbeech@gmail.com>
Cc: Obligations <obligations@uwo.ca>
Subject: Re: Sheehan v Samuelson 2023 NSSM 27

Attention : courriel externe | external email

Dear Jack
As regards the concern you express - In the hypothetical you raise, would the Court not simply say that an order against the sex worker (e.g. for damages) would breach the purpose of the rule rendering the purchase of sex work illegal and therefore could and should not be made?

Kind regards

Ger

On 8/10/23, Jack Enman-Beech <jenmanbeech@gmail.com> wrote:
> A Small Claims Court in Nova Scotia ordered that a trick who had
> contracted for and received sex work services had to pay for them at
> the agreed
> rate: *Sheehan
> v Samuelson* 2023 NSSM 27
> <https://www.canlii.org/en/ns/nssm/doc/2023/2023nssm27/2023nssm27.html>.
> This is a remarkable case for several reasons, not least that it
> happened at all. The motivations of Samuelson in hiring a lawyer to
> defend this case in a public setting are unclear. There are
> jurisdictions where sex work is not in general illegal, and even in
> these cases like this one seem to be rare (eg, there is apparently no
> case law on point in the Netherlands*). A question for the group: does
> anybody on list know of any other case where a sex worker has sued for
> payment in a jurisdiction where sex work is totally or partially
> illegal? If so, please share. A brief discussion of this case follows.
>
> * Aurelia Colombi Ciacchi, Chantal Mak & Zeeshan Mansoor, eds,
> *Immoral
>> Contracts in Europe* (Intersentia, 2020) at 119.
>
>
> The claimant is a registered tax-remitting business. In Canada only
> the purchase of sex work is illegal, roughly speaking. The claimant
> negotiated an agreement with Samuelson. Seven hours later he owed her
> about $2,100 under their agreement. None of this was contested and (as
> the adjudicator, Pink, notes) if this weren't a case of sex work that
> would be the end of it.
>
> Pink decided that the contract was enforceable despite illegality
> because that is consistent with the policy behind the criminalization
> of purchasing sex work, *viz*. the protection of sex workers. In the
> alternative, Pink found that there would be a claim in restitution. At
> no point was the lurking other question considered: what are we to
> make of the sex worker's side of the bargain? If there is a contract,
> it might be that the provision of sex work can be consideration; and
> under unjust enrichment, a legally-cognizable benefit (Pink notes that
> the corresponding deprivation need not be 'giving' or 'submitting to'
> sex, but can simply be the sex worker's being indisposed for the
> duration). Both tend to the conclusion, perhaps odious, that a trick
> has a claim against a sex worker for services paid for but not
> received. There is no danger of such a claim being specifically
> enforced, but as a compensable claim it leads to a) the symbolic
> situation of the commodification of sex and b) the practical situation
> of a sex worker facing a potential damages order for not having sex
> (on top of the various pressures they already face). It would have
> perhaps been preferable for Pink to decide the case on a basis that explicitly rules out such results.
>
> Yours truly &c.,
> Dr John Enman-Beech
> Lecturer in the Law of Contract
> <https://www.kcl.ac.uk/people/john-enman-beech>
> King's College London, Dickson Poon School of Law
> <https://www.kcl.ac.uk/people/john-enman-beech>
>