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Illegal Contracts and Agreements: A New Standard for Prostitution and Marijuana Agreements


Doug Rendleman


June 13, 2024

Agreements exchanging sex for money and those involving marijuana may encounter illegality defenses in court. Granting a legal remedy for breach of an agreement that exchanges seriously illegal consideration would lower the court’s public standing and endanger its legitimacy. On the other hand, the spectacle of a buyer claiming its own illegality to escape paying its seller troubles courts.

Lord Mansfield stated the illegality defense in Holman v. Johnson: “No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Yet he rejected the illegality defense in that case on the ground that the plaintiff’s contract to sell tea that the buyer planned to smuggle into England was complete before the crime occurred.

Difficult illegality decisions arise when the illegality is not serious, as in this Article’s sex and marijuana topics. This Article rejects fixed rules for illegality disputes and favors judicial discretion guided through standards. The standards include the seriousness of the illegality and preventing unjust enrichment leading to restitution. Applying the standards to the Article’s first example leads to potential recovery for an unpaid sex worker. The Article also approves recovery of contractual damages for many marijuana transactions that are illegal under federal law but legal under state law.


Doug Rendleman, Illegal Contracts and Agreements: A New Standard for Prostitution and Marijuana Agreements, 81 Wash. & Lee L. Rev. 711 (2024).