4.

(a) CONTRACTS ILLEGAL AT COMMON LAW

PUBLIC POLICY: Law should not assist contract o!!"n#$n% PP. Parliament legislates. Courts interpret. Balance between: E!!"ct e* turpi causa r*2" a002$" ;E<c"0t$on &) Protect society from injurious contracts ') Uphold freedom to Contract. ."2o: $n 4. (!)=. TRA(ITIONALLY: The number of subcategories for contracts illegal at common law: (a Commit a cr$)"! a tort or a !ra*# on a third party (b Promote se"ual immorality# (c Prejudice public safety# national security or foreign relations (d Prejudicial to the administration of justice (e Promote corruption in public life# and (f $efraud the re%enue. (a) COMMIT A CRIME+ A TORT OR A ,RAU( ON A T-IR( PARTY. Allen v Rescous: agree for an assault North v Marra: a contract to decei%e public&manipulate share prices is illegal Two 'teps: a (s it illegal under statute) b $oes public policy infringement *noc* it out) (Loo* at purpose of the statute Fitzgerald v Leonhardt (.) CONTRACTS+ W-IC- PROMOTE SE/UAL IMMORALITY. +e,uires the court to apply the moral standards of the day! therefore! is of diminishing significance. Contracts that ha%e the purpose of the continuation of unmarried cohabitation are lawful Andrews v Parker. Pearce v Brooks contracts entered into to facilitate prostitution - illegal. NSW Pro0"rt1 (R"2at$on 3$0 ) Act &454 acti%ely promotes the use of cohabitation agreements between de facto couples. (c) PRE6U(ICE PUBLIC SA,ETY7 NATIONAL SECURITY OR ,OREIGN RELATIONS Contracts made with countries we are at war with! or contracts that could jeopardi.e the e"isting friendly relations between /ustralia and another country. Hirsch v Zinc Corp 0 with national of country at war w /ustralia (ca0ac$t1 to contract)# e !utz v Hendricks /greements to support o%erthrow of foreign go%ernment# Regazzoni v " C #ethia: agreements unlawful act in foreign country (#) PRE6U(ICIAL TO A(MINISTRATION O, 6USTICE. Contracts to conceal an offence! stifle or impede a prosecution are illegal: perjury! assault! forgery. A v Ha$den% the identity confidentiality clause was illegal as obstructing the administration of justice. (") PROMOTE CORRUPTION IN PUBLIC LI,E. Contract with a public official in which the official endea%ours to procure a benefit for the promisee if the official is paid! is illegal !ilkinson v &s'orne payment was not r"co8"ra.2" as it was based on an $22"%a2 contract. Parkinson v College o( A)'ulance Ltd and Harrison! no *nighthood so P sued for return of donation 1 $22"%a2 contract.

(f

(E,RAU( T-E RE9ENUE. / contract! the purpose of which is to defraud the re%enue (e.g.! a%oid paying ta" ! $ $22"%a2. Ale*ander v Ra$son 2nglish Court of /ppeal held that as fraud established! plaintiff could not sue on agreement. MO(ERN APPROAC-: Fitzgerald v F + Leonhardt / contract can be 8o$# 3because of its a oc$at$on :$t3 $22"%a2 act$8$t1.4