Abstract
When will a contract be rendered unenforceable as a result of illegality? This question has plagued the courts for decades, while the law has been left in a confused state. In this article, I propose an overarching idea to navigate a path through the doctrinal morass: where a party has culpably abused a contract for anti-social acts, this party will not be allowed to enforce his otherwise valid contractual rights. I use this idea to reconcile the disparate rules regarding statutory and common law illegality, doctrinal distinctions between illegally formed and illegally performed contracts, and emerging questions relating to the fluid notion of ‘public policy’, the relevant state of mind of a plaintiff in deciding contractual enforceability and the scope of newer principles relating to ‘remoteness’, ‘proximity’ and ‘proportionality’; as well as to re-orient academic and judicial discussion towards the issues that really matter in this dynamic area of law.
Get full access to this article
View all access options for this article.