Illegal contracts and the restitution of transferred property: a comment on Husbands v Caesar

• Author: Jefferson Cumberbatch
• Position: Deputy Dean, Academic Affairs and Senior Lecturer in Law; University of the West Indies
• Pages: 168-176

ILLEGAL

CONTRACTS

AND

THE

RESTITUTION

OF

TRANSFERRED

PROPERTY:

A

COMMENT

ON

HUSBANDS

v

CAESAR

JEFFERSON

CUMBERBATCH*

The

recent

decision

of

the

Court

of

Appeal

of

Guyana

1

in

Husbands

v

Caesar*

reinforces

the

view

that,

in

this

jurisdiction,

the

old

axiom

that

the

courts

do

not

sit

to

enforce

illegal

contracts

3

is

true,

if

at

all,

in

only

a

very

limited

sense.

The

die

had

already

been

cast

by

Bernard

JA

(as

she

then

was)

in

Ambrose

v

Boston,

4

where

she

counseled

that:

...

a

court

cannot

be

unmindful

of

the

realities

of

the

society

in

which

it

functions

and

ought

not

to

be

seen

as

stultifying

business

transactions

of

individuals

by

adhering

rigidly

to

statutes.

5

It

might

be

thought

that

the

last

phrase

of

that

dictum

does

go

a

bit

further

than

is

warranted,

especially

since

the

statute

itself

will

usually

be

silent

as

to

the

contractual

rights

of

the

parties

if

it

is

infringed,

6

but

she

concluded

by

expressing

agreement

with

Bingham

LJ

7

to

the

effect

that:

It

is

unacceptable

that

the

court

should,

on

the

first

indication

of

unlawfulness

affecting

any

aspect

of

a

transaction,

draw

up

its

skirts

and

refuse

all

assistance

to

the

plaintiff,

no

matter

how

serious

his

loss

or

how

disproportionate

his

loss

to

the

unlawfulness

of

his

conduct

.8

’

Deputy

Dean,

Academic

Affairs

and

Senior

Lecturer

in

Law,

University

of

the

West

Indies.

1.

Kennard

C,

Perry

and

Persaud

JJA.

2.

(2000)

61

W

I

R

271-285.

3.

Enonchong,

N,

Illegal

Transactions

(1988,

London:

Lloyds

of

London

Press).

4.

(1993)

55

W

I

R

184.

5.

Ibid.

at

195.

6.

In

most

cases,

the

statute

will

be

silent

as

to

whether

a

contravention

of

it

renders

a

resultant

contract

illegal

-

see

Phoenix

General

Insurance

Co

of

Greece

SA

v

Admin

istrativa

Asiguraritor

de

Stat

1

QB

216.

7.

In

Saunders

v

Edwards

[1987]

1

WLR

1116.

8.

Ibid,

at

1134.