Illegal transactions
This project looks at the way that contract, trust and property law treats transactions that involve an element of illegality.
The law in this area has been criticised for being complex, uncertain and occasionally unjust.
Consultation papers
In 1999 we published Illegal Transactions: Illegal Transactions: the Effect of Illegality on Contracts and Trusts (Consultation Paper No 154). It proposed that where a contract involves an element of illegality, the court should have a structured discretion whether to enforce it.
In 2001 we published The Illegaility Defence in Tort (Consultation Paper No 160). It proposed a similar discretion in tort claims.
Response
The response to these papers was mixed. Many respondents supported a statutory discretion. A strong minority, however, felt that a discretion would introduce even greater uncertainties into the law. We have since looked at ways that the law could be rationalised without statutory intervention. We presented a paper to the SPTL Conference in 2002 which set out some preliminary thoughts along these lines. However, the issues have proved difficult and controversial and Commissioners have not yet reached any final conclusions.
Employment
There are particular problems about the effect of illegality on employment rights - particularly where the parties are not paying PAYE. In February 2005 we presented a short paper on this subject to the TUC Legal Officers Group. Again, the paper was designed to ask questions, and does not represent Commissioners' views.
Presumption of advancement
We are concerned that, in illegal transactions, the presumption of advancement has arbitrary and discriminatory effects. As part of our work on the effect of illegality on trusts we considered whether to recommend abolition of the presumption. In December 2006 we issued a short paper explaining the issues in more details and asking for comments. We are grateful for all the comments we have received.
We plan to publish a report in 2008.
For more information, contact the commercial and common law team or go to the team page.
NOTE - We are happy to provide information about our projects. However, we cannot give legal advice or deal with individual cases. Nor do we help with student assignments.