Andrew,

That is really interesting. I suspect that this may be a press report
of the case your friend mentions - though the source is more of a rag
than a paper of record:

http://www.independent.ie/world-news/europe/woman-gets-2000-after-hired-hitman-failed-to-kill-her-26404390.html

I guess this was a criminal case.

Kind regards

Ger

On 8/13/14, Andrew Dyson <andrew.dyson@law.ox.ac.uk> wrote:
> Thanks Rob and Gerard.
>
>
>
> I have an economist colleague in Oxford (cced) whose research "uses existing
> economic models of reputation to analyse how various illicit markets are
> able to function in the absence of any legal mechanism to enforce
> agreements, from drug markets to the online markets for stolen bank and
> credit card details" (from his bio).
>
>
>
> His recent research looks at the effect of deliberately circulating 'dud'
> credit card details amongst card fraudsters in an attempt to disrupt trust
> in the system. Following Patel, I wonder if a fraudster who paid good money
> for dud details could later recover for failure of consideration?!
>
>
>
> I forwarded my colleague the discussion below, and he replied (with
> permission to re-post):
>
>
>
> "All very interesting. There's a similar(ish) precedent I've been trying to
> track down intermittently. I think the case was in Wales up to about 5
> years ago, where a depressed woman took out a hit on herself as a means of
> suicide. For obvious reasons, she had to pay the full amount up front. The
> person she hired never completed the hit and she took him to court alleging
> breach of contract and won."
>
>
>
> Is anyone aware of this case? It's possible that the claim was again for
> recovery of money paid, rather than damages for breach of contract (for the
> loss of not being dead....?). My economist friend also noted that:
>
>
>
> "In economics we tend to just make a blanket assumption that illegal
> contracts are not enforceable. It is interesting that they sometimes are
> enforceable, and in fact opens up an interesting question as to when they
> should be enforceable. One of the factors to consider here is the way in
> which so much of the violence in illicit markets can be traced back to
> contract and property right enforcement. Diego Gambetta and Federico Varese
> have shown how the Sicilian and Russian mafias are basically concerned with
> contract and property rights enforcement in areas where the state is
> unwilling or unable to provide those services. So the failure of the state
> to enforce agreements in illicit markets is one of the reasons these markets
> are so violent. If the goal is harm reduction, it is not obvious that the
> courts should not enforce these agreements."
>
>
>
> I suppose it's up to the lawyers to decide whether the goal of the rules on
> illegality are or should be deterrence/harm reduction. But if they are, then
> at that stage I think we need more economists (or lawyers!) doing empirical
> work, before we can speculate what the pursuance of those goals entails, in
> terms of rule-design......
>
>
>
> Best wishes,
>
> Andy
>
>
>
>
>
>
>
> -----Original Message-----
> From: Enrichment - Restitution & Unjust Enrichment Legal Issues
> [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Gerard Sadlier
> Sent: 12 August 2014 18:20
> To: ENRICHMENT@LISTS.MCGILL.CA
> Subject: Re: [RDG] Illegality Again
>
>
>
> Hard to disagree with your comments on Tribe.
>
>
>
> What follows is a hunch. I suspect however that there are those,
> particularly those who contemplate "white collar crimes" such as insider
> trading, who may well be aware of the law's attitude to illegal
> transactions. If I am right about that, then deterrants becomes less
> fanciful. It would require singular honour among insider traders for X to
> give money to Y to put through such a trade, if he knew that if Y did not
> repay him, he (X) would have no recourse.
>
> Moreover, I suspect that the disappointed would be insider trader is less
> likely to be prosecuted for an attempt than you would be if it were to come
> to light in court that you had engaged the services of an asassin.
>
>
>
> On 8/12/14, Robert Stevens
> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>> wrote:
>
>> Tribe v Tribe is, if anything, even worse. There the illegal purpose
>
>> had in fact been fulfilled. The father's purpose in putting the shares
>
>> into his son's name was to hide the asset from his creditors in case
>
>> he went into bankruptcy. It did not form part of the father's purpose
>
>> that he in fact went into bankruptcy. Indeed, the father no doubt
>
>> preferred not becoming bankrupt, and not in fact deceiving anyone. The
>
>> only undone part of the illegal transaction was the return of the
>
>> shares by the son: which the court compelled to be done.
>
>>
>
>> Again, a case where the court illegitimately ducked what the rule
>
>> requires because they didn't like treating the (dishonest) old man
>
>> unfairly vis a vis his (dishonest and disloyal) son.
>
>>
>
>> The Latin is unfortunate, as the rule is nothing to do with penitence.
>
>>
>
>> If I pay a hitman a sum to kill my rival, if the rival dies before the
>
>> hit is carried out, do I now get to claim my money back on the basis
>
>> of 'withdrawal'?
>
>>
>
>> I very much doubt whether this part of the civil law has any
>
>> discernible impact on the behaviour of criminals, but who knows? I
>
>> have heard it argued that it is a good thing that this area is an
>
>> uncertain mess because that way criminals can't be sure how to
>
>> structure their transactions in a way so as to avoid the rule.
>
>> ________________________________________
>
>> From: Enrichment - Restitution & Unjust Enrichment Legal Issues
>
>> [ENRICHMENT@LISTS.MCGILL.CA] on behalf of Gerard Sadlier
>
>> [gerard.sadlier@GMAIL.COM]
>
>> Sent: 12 August 2014 17:22
>
>> To: ENRICHMENT@LISTS.MCGILL.CA<mailto:ENRICHMENT@LISTS.MCGILL.CA>
>
>> Subject: Re: [RDG] Illegality Again
>
>>
>
>> The decision of the majority seems required by Tribe v Tribe [1996] Ch
>> 107.
>
>>
>
>> In Tribe, there was no true repentance, in the sense of remorse, either.
>
>>
>
>> For myself, I agree that there is a lot to be said for simply refusing
>
>> relief in both cases on the basis that this will deter at least some
>
>> such transactions.
>
>>
>
>> On 8/12/14, Robert Stevens
>> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>> wrote:
>
>>> ---------- Forwarded message ----------
>
>>> From: Robert Stevens
>>> <robert.stevens@law.ox.ac.uk<mailto:robert.stevens@law.ox.ac.uk>>
>
>>> Date: 12-Aug-2014 9:56 am
>
>>> Subject: Illegality Again
>
>>> To: Obligations Discussion Group
>>> <odg@law.ox.ac.uk<mailto:odg@law.ox.ac.uk>>
>
>>> Cc:
>
>>>
>
>>> A decision of the Court of Appeal in Patel v Mirza.
>
>>> http://www.bailii.org/ew/cases/EWCA/Civ/2014/1047.html
>
>>>
>
>>> The case concerns a claim to recover a sum that had been paid in
>
>>> order to make money through insider trading that never actually
>>> occurred.
>
>>>
>
>>> So, one of the conspirators says he has access to meetings between
>
>>> the bank RBS and the UK government when the former was in crisis. He
>
>>> says he can make money on the spread betting market by using this
>
>>> info to place bets on RBS'
>
>>> share price. A clear example of the crime of insider trading. The
>
>>> claimant hands over cash to facilitate the bets, but the meetings,
>
>>> and hence the bets, never occur. Claimant now wants his money back.
>
>>>
>
>>> CA unanimously hold that the money is recoverable.
>
>>>
>
>>> In my view, this result is clearly wrong, but then I don't approve of
>
>>> the recent 'developments' in the law.
>
>>>
>
>>> The claimant relies on his own illegality in making the claim. He
>
>>> even pleaded it. On its face then, following Tinsley v Milligan, the
>
>>> requirement of legal coherence means the claim fails.
>
>>>
>
>>> The claimant then relies upon an exception to this rule, the locus
>
>>> poenitentiae doctrine. Rimer and Vos LJJ both consider that the case
>
>>> fell within that exception, and that it did not matter that the
>
>>> claimant's withdrawal occurred after the scheme became impossible to
>>> carry out.
>
>>>
>
>>> But this seems obviously wrong. If the exception exists, we have it
>
>>> to encourage people to withdraw from illegal transactions. If they
>
>>> cannot recover back their money there is no such encouragement, and
>
>>> they may as well carry it through. This is nothing to do with
>
>>> penitence, as Timer LJ thinks.
>
>>>
>
>>> If, for example, I pay a hitman to kill a colleague of mine in order
>
>>> to further my career, but then discover that my career will prosper
>
>>> even more if he lives, I should be able to recover my money before
>
>>> the murder, regardless of my being wholly impenitent. We don't wish
>
>>> to discourage withdrawal. But in this case the crime was no longer
>
>>> capable of being committed, there was nothing to draw back from.
>
>>>
>
>>> Gloster LJ gives additional and even more radical reasons for the
>>> result.
>
>>> So, rejecting the Tinsley v Milligan approach she engages with a wide
>
>>> ranging discussion of whether the policy underlying the illegality of
>
>>> insider trading is or is not engaged, concluding that it is not. She
>
>>> considers it important that the claimant was not seeking to enforce
>
>>> the agreement, but recover back money paid.
>
>>>
>
>>> Somewhat oddly, the decision in Parkinson v Royal College of
>
>>> Ambulance, on facts that as far as I can see are materially
>
>>> identical, is not cited by anyone. Presumably it is no longer good law.
>
>>>
>
>>> The problem with the illegality principle is that it requires the
>
>>> court to do injustice. As between claimant and defendant, it was
>
>>> clearly fair that the money was repaid. It takes a certain firmness
>
>>> from a judge to say that regardless of what fairness between the
>
>>> parties requires, the coherence of the law requires a different
>>> conclusion.
>
>>>
>
>>> If this is not overturned, then I accept that my recently expressed
>
>>> view that this is not a matter worth referring back, with heavy
>
>>> heart, to the Law Commission was wrong.
>
>>> Rob
>
>>>
>
>>
>
>> ====
>
>>
>
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> ====
>
>
>
> This message was delivered through the Restitution Discussion Group, an
> international internet LISTSERV devoted to all aspects of the law of unjust
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> This message was delivered through the Restitution Discussion Group,
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> of unjust enrichment. To subscribe, send "subscribe enrichment" in
> the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
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====

This message was delivered through the Restitution Discussion Group,
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of unjust enrichment. To subscribe, send "subscribe enrichment" in
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send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.