Immoral contracts

Immoral contracts are unenforceable

If you should ever find yourself sharing a pillow with a lawyer and wondering how to pass the time you might want to try winking seductively and whispering the line: “ex turpi causa non oritur actio” – which being loosely translated means “you’ll get no action from a dishonorable cause.”

This is a rule of contract law, rather than tax law, and what it means is that the courts will not enforce an immoral contract.  The leading case on this dates back to Victorian times, but it is still relevant; and formed part of the reasoning that resulted in Lindi St Clair having her limited company struck off over 100 years later. See the Whiplash cases for more details.

Pearce & another v Brookes

(Court of the Exchequer 17 April 1866)

Red Brougham c1890

Ms Brookes was a prostitute who bought a small ornamental carriage (a Brougham) “to assist her in carrying on her immoral vocation”, from Mr Pearce and his un-named business partner.

A Brougham was a two-seater horse-drawn carriage with a window at the front, as well as the sides, so the passengers had a better view out, and the public a better view in. A soft top Brougham-Landaulet was also available. They were very popular with the aristocracy and upper middle classes. So you might say they were the 19th century equivalent of an Audi: a one horse-power Audi.

The cost of this Brougham was 135 guineas (equivalent to £141.75) and Ms Brookes entered into a hire purchase agreement. She paid £50 up front, and the balance was to paid by instalments over 12 months with interest at 5%. If she returned it before paying the second instalment there would be a penalty of 15 guineas (£15.75) plus a charge for any damage other than fair wear and tear.

She returned the Brougham before making the second payment, which led to Mr Pearce and his partner suing her for the penalty as well as the cost of repairing damage that the carriage had suffered. Ms Brookes claimed they had known all along that she was going to use it in her business as a prostitute, and therefore the contract was for an immoral purpose and unenforceable.

The court agreed with her. Here is one of the 3 judges (Bramwell, B) who decided the case:

There is no doubt this woman was a prostitute, and that the plaintiffs knew it. At any rate the jury found that they did. Then the only other fact in dispute was, for what purpose did she hire the brougham, and for what purpose did they let the brougham? As to the purpose with which she hired it, there was no other means of knowing, excepting that the jury might, as they did, apply their knowledge of the affairs of life to this unlawful transaction. For that reason, it seems to me, they might infer that this woman was hiring the brougham for the purpose for which they said she did hire it, and of which the jury shewed their intelligent appreciation by using the expression “for display.” I take it, therefore, that she was a prostitute; that the plaintiffs knew it; and that she hired this brougham for the purposes of display, that is to say, for the purpose of pursuing and following her calling.

and this from another of the judges (Piggott, B):

The principle of law is contained in the legal maxim [ex turpi causa non oritur actio], and there is no doubt that where persons engage to be parties to immoral contracts, they must not come to Courts of Justice and seek to enforce them. The only question here is, whether the plea is proved. The jury are entitled to call in aid their knowledge of the usages of society; and if this woman was a prostitute, and was known to be such, and wanted an ornamental brougham, there is very little doubt that she wanted it for the purpose of plying her illicit trade.

Effectively the court said to Mr Pearce “you have entered into an immoral contract, so we will have nothing to do with it. If you have lost out, that’s tough.”

There are a few points to note about all this:

  • The decision is not about prostitution being illegal. It wasn’t, and isn’t illegal. Although prostitution is legal the law regards it as immoral and any agreement or contract relating to prostitution is outside the law and unenforceable.
  • The agreement or contract does have to be directly related to the activity of prostitution to be unenforceable. One of the cases considered in this judgement was Lloyd v Johnson (1798) in which Lloyd successfully sued Johnson for non-payment of laundry charges for a brothel. Lloyd washed a number of articles including expensive dresses and gentlemen’s nightcaps, and the court decided it was impossible to work out how much related to immoral activities.
  • Some contracts are very clearly caught by this rule: any agreement between a punter and a sex worker to supply sexual services is unenforceable.
  • Contracts which are nothing to do with escorting but relate to an escort’s ordinary life are certainly not affected by this rule.
  • There is a grey area of contracts which could well be caught. This includes contracts with website hosts and designers; contracts between escorts and agencies; and agreements between punters and agencies. I am not aware of any escorts who accept payment by credit card, but a credit card merchanting agreement could well be caught if the credit card company knew what services were being sold – the risk of chargebacks would probably prevent escorts accepting them in any case.

A final aside

This is of no relevance, but quite amusing.

As well as designing carriages Lord Brougham had a distinguished career as a lawyer, amateur scientist, MP and then member of the House of Lords, and at one stage Lord Chancellor. During his tenure he was instrumental in getting the Slavery Abolition Act passed as well as the Great Reform Act of 1832.

He was also no stranger to the world of courtesans, and may very well have been entertained in his brougham by the infamous Harriette Wilson.

In 1821, at the age of 35, Harriette Wilson decided to retire to Paris after a successful career as courtesan to four Prime Ministers, several Earls, Dukes and Lords, various gentlemen of quality, and one King. To secure her financial future she wrote her memoirs and then systematically wrote to all her clients offering to remove them from the manuscript if they made it worth her while. Brougham was one who paid up, as did George IV; though the Duke of Wellington did not, famously telling her to “publish and be damned.” Her memoirs are still available.

Brougham in turn also retired to France. In 1835 he stumbled across Cannes, an insignificant fishing village and was so delighted with the area that he built himself a house where he spent much of his later years. His impact in popularising Cannes is now marked by a statue on the waterfront.