Does the Doctrine of Not Enforcing ‘Illegal Contracts’ Really Work? A Comparative Law Study

Should the law punish those involved in illegal activities by taking away their right to recover in contract or tort? The long standing doctrine of “ex turpi causa” requires that those involved in criminal or illegal activity should be bared from recovery if they were harmed physically or economically as a result of the transaction or activity. The “ex turpi” doctrine - alternatively called the doctrine of not enforcing illegal contracts - has been applied for more than three centuries - basically indiscriminately and uncritically. This article scrutinizes the doctrine of illegal contracts and attempts to expose its many faults and flaws. More specifically, the article points out that not only does the doctrine fail to achieve its purported objectives, it furthermore perpetuates the very unfairness and injustice it seeks to prevent. To fully highlight the results of a system rejecting the ex turpi doctrine, the article presents and compares the Jewish legal approach to illegal contracts and the ramifications under that system. Finally, in view of doctrine’s many defects, recommends that courts eliminate the use of the ex turpi doctrine and adopt an approach in which litigants will be judged not on the basis of their character or criminality but on the inherent legal merits of their positions