13505303
Description
Flashcards by Vanja Juvet, updated more than 1 year ago
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Created by Vanja Juvet
over 6 years ago
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| Question | Answer |
| Les Laboratoires Servier v Apotex Inc Lord Sumption: | Illegality bars the application of the authority of the state to the enforcement of an illegal transaction or to the determination of the legal consequences of an illegal act. Illegality applies at either contract formation or contract performance |
| Contract Formation | Agreement or undertaking is void from the time of formation due to illegality |
| Contract Performance | Agreement satisy the requirements for formation of contract but are unenforceable due to illegality or Public Policy. |
| Reasons for tthe illegality doctrine | * Preservation of the integrity and dignity of the legal system * Promotion of consistency in the legal system * Prevention of a tainted justice administration system * the Court cannot be used to aid parties that have participated in prohibited activities |
| Sources of Illegality | Statute: this is through express or implied prohibition; Bigos v Bousted (agreement contrary to exchange regulations held unenforceable) Common law: Public policy is used to decline enforcement of agreements contrary to good morals, agreements to commit crimes, agreements in restraint of trade etc. Pearce v Brooks (agreement to supply goods to a prostitute for prostitution held unenforceable) |
| Approaches to illegality | Strict - mechanical Flexible - Purposive/discretionary |
| Strict Approach to illegality | means that illegality is a procedural bar that prevents even the evaluation of the underlyin public policy. Tinsley v Milligan; "the effect of the illegality is not substantive but procedural". |
| Flexible Approach to Illegality | means that an illegality defence will fail if it is not justified by reference to the underlying public policies. The supreme Court recently confirmed the flexible approach: Patel v Mirza; claimant paid D 620,000 pounds to illegally trade in a bank´s shares as prohibited by insider dealing law. Performance of the agreement required certain information to be disclosed. the information was not disclosed and to the illegal trade was not carried out. the court held that the claimant should recover the money he had paid to D. |
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