Ex turpi causa non oritur actio (Latin for “no act arises from a dishonorable cause”) is a legal doctrine that states that a plaintiff is incapable of appealing if it is in connection with his own illegal act. [1] Particularly relevant in contract, tort and trust law,[2] ex turpi causa is also known as speech of illegality, as a defendant may rely on the fact that, although he has breached a contract, acted negligently, or breached an equitable duty, for example, a plaintiff cannot sue because of his own illegality. The Supreme Court of the United Kingdom examined the doctrine in depth in Patel v. Mirza in 2016. [3] If the illegality is eliminated by legislative measures (e.g. If the law that made the act that caused the damage a crime is repealed) or a subsequent legal proceeding (in which the law is declared invalid), the tort action remains. In Martin v. Ziherl, both parties were friends and boyfriends until Martin discovered that Ziherl had given him herpes. Martin sued Ziherl in Virginia Circuit Court for damages, and Ziherl argued that because of Zyzk v. Since Zysk`s sexual relations with a person they were not married to were technically the crime of fornication, Martin could not prosecute Ziherl because she had contracted herpes as a result of the illegal act. Martin argued that the law was unconstitutional. The court ruled in favour of Ziherl and Martin.
Martin appealed, and the Virginia Supreme Court overturned that decision, agreeing with Martin`s argument that the U.S. Supreme Court in Lawrence v. Texas that non-commercial private intimacy was a protected right, the law that made fornication a crime was unconstitutional, so Martin could sue now that the law, who had sex with someone they were not married to when it was null and void. The objection that a contract between plaintiff and defendant is immoral or illegal always rings very bad in the defendant`s mouth. However, it is not for him that the objection is ever admitted; But it is based on general principles of policy that the defendant accidentally exploits, unlike actual justice between himself and the plaintiff, if I may say so. The principle of public policy is: ex dolo malo non oritur actio [“No action arises from deception”]. No court will help a man who bases his complaint on an immoral or illegal act. If the cause of action appears to arise ex turpi causa [“immoral cause”] or from the violation of a positive law of that country, the court shall declare that he is not entitled to assistance.
For this reason, the court decides; Not for the sake of the defendant, but because they will not help such a plaintiff. Thus, if the plaintiff and the defendant switched sides and the defendant brought his action against the plaintiff, then the plaintiff would have the advantage; for if both were equally guilty, Potior est conditio defendentis [“The stronger the position of the accused”]. In other cases, courts consider ex turpi as a defence if a claim would otherwise be made, again on grounds of public policy. In Tinsley v. Milligan,[10] Nicholls C.J. stated before the Court of Appeal that the court “must weigh or weigh the prejudicial consequences of awarding remedies against the negative consequences of denying reparation.” The plaintiff was ultimately successful in the House of Lords in Tinsley v. Milligan, who confirmed the action on the grounds that he did not have to plead illegality. The doctrine of contracts does essentially the same thing as one of the erroneous contractual elements called “illegality”. In the present case, contractual remedies cannot be exercised by a court against a defendant if it is clear that the subject-matter of the contract is in any way, directly or implicitly contrary to public policy or existing laws or customs. A somewhat related concept in contract law is the fair defence of dirty hands. It is not absolutely effective.
For example, in Revill v. Newbery,[7] a former housing estate slept with a shotgun in its shed to deter burglars. When he heard the applicant attempt to break in, he fired his gun through a hole in the shed and injured him. At trial, the judge awarded damages on the basis that the defendant had used force beyond the reasonable limits of self-defence and had acted negligently, which was expected of a reasonable man in such a situation. On appeal, the defendant raised the ex turpi causa challenge, but the Court of Appeal held that, while the public interest required that a person not profit from his unlawful conduct, different considerations were applied in tort cases than in factual or contractual contexts. The old common law authorities and the report of the Law Commission (Liability for Damage or Injury to Intruders) recognized the existence of a certain duty to intruders, and the defendant could not invoke the doctrine to exonerate himself from liability. In Holman v. Johnson,[4] Lord Mansfield J.
explained the reasons for the doctrine of illegality. The exact scope of the teaching is uncertain. In some cases, it appears that illegality prevents a duty of care from arising in the first place. For example, in Ashton v. Turner,[8] the defendant injured the plaintiff by crushing the car in which they were sitting together as they fled the scene of a burglary they had committed together. Justice Ewbank held that the court cannot recognize a duty of care in such cases as a matter of public policy. Similarly, in Pitts v. Hunt,[9] the Court of Appeal simplified this approach by stating that it was impossible to determine the appropriate standard of due diligence in cases where the parties were involved in the illegality. In tort law, the principle would prevent an offender (for example) from resorting to a co-criminal. In National Coal Board v.
England[5], Lord Asquith stated: In 2016, the UK Supreme Court fundamentally revisited this doctrine in Patel v Mirza[3] by repealing the Tinsley v Milligan test and replacing it with a new set of principles. The changes were described as “revolutionary” by one judge in this case, Lord Sumption (at [261] in the judgment). If two burglars, A and B, agree to open a safe containing explosives and A handles the explosive charge with such negligence that B is injured, B may have difficulty maintaining a negligent claim against A. In Hewison v. Meridian Shipping Services Pte Ltd,[6] an employee who had obtained his position by concealing his epilepsy was not entitled to claim compensation for future loss of income due to his employer`s negligence, since his deception (which resulted in a financial benefit contrary to the Theft Act 1968) would prevent him from: to find a similar job in the future.
Comments are closed.