The Sanctity of Contracts in English Law - College of Social ...

Contracts Contrary to Law or Morality 53sake of the defendant, but because they will not lendtheir aid to such a plaintiff. So if the plaintiff anddefendant were to change sides, and the defendantwas to bring his action against the plaintiff, the latterwould then have the advantage of it; for where bothare equally in fault, potior est conditio defendentis."Three things are implied in this general expositionof the attitude of the common law courts. In thefirst place, it is more often than not distasteful for thejudge to have to listen to a person who has promisedto do something and then finds it inexpedient to fulfilthat promise, plead that what he promised to do wasillegal or immoral and so he need not perform it. Thiswas made clear in a recent case in these words 2a :" We are all familiar with the many cases which arosewhen building work was found to have been donewithout a building licence under the defence regulationshaving been obtained. Although it was notalways other than distasteful, it enabled a defendant,who had had work done and who had enjoyed thebenefit of it, to say that he was not bound to pay forit; because he and the builder had been party towhat was in effect an illegal contract."In the second place Lord Mansfield only contemplatedcontracts that were " immoral or illegal asbetween plaintiff and defendant." The immorality orunlawfulness of the contract itself weighed moreheavily against the plaintiff in the scales of justicethan the lack of faith shown by the defendant by his2 » Per Lord Evershed M.E. in Town-iend (Builders), Ltd. v.Cinema News, etc., Ltd. [1957] 1 W.L..E. 119, 124; and seeStrongman v. Sincock [1955] 2 Q.B. 525.