Date: Wed, 18 Jan 2006 09:25:04 +1100

From: Neil Foster

Subject: Illegal contracts and restitution

A minor and possibly irrelevant question: what crime was the "conman" convicted of? Fraud? But then doesn't that mean the law is saying he "ought to have kept his promise" to arrange for the woman's death? Maybe there are some offences relating to encouraging unlawful homicide.

Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Hector MacQueen 18/01/06 7:25 >>>

Dear Jason

When I lecture first year law students on illegal contracts, I always give the hired assassin as the easy example of the person whose contract can't be enforced by either party; and probably restitution of any advance payments made won't be ordered either. But here the assassin is, so to speak, one step removed from the contracting parties. Can the would-be victim (another distinction from the usual case, because she is a party to the contract) enforce the deal, either by way of specific performance (surely unlikely) or a claim for damages? If so, could that include emotional trauma damages? Can she alternatively seek restitution if the contract is void or voidable for fraud? The latter seems more attractive to me than the other two possibilities.

From the other perspective (the potential recipient of the money), what happens if he finds a hitman but then the would-be victim doesn't pay up (and, say, perhaps, that he has already paid the hitman)? Presumably unenforceable and no question of restitution?

Anyway, my conclusion is that the Times headline is wrong in law. What do others think?

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