The doctrine of illegality and interference with chattels



Publication Details

Goudkamp, J. and Mayr, L. (2015). The doctrine of illegality and interference with chattels. In A. Dyson, J. Goudkamp and F. Wilmot-Smith (Eds.), Defences in Tort (pp. 223-246). United Kingdom: Hart Publishing.

Additional Publication Information

ISBN: 9781849465267


Given its current prominence, one could almost be forgiven for thinking that the doctrine of illegality, which is often known by way of the maxims ex turpi causa non oritur actio1 and ex dolo malo non oritur actio,2 has a long lineage in tort law. In truth, however, it is a fairly late arrival on the scene. In 1954 in National Coal Board v England Lord Porter declared that the doctrine 'is generally applied to a question of contract' and that he was 'by no means prepared to concede where concession is not required that it applies also to the case of a tort'.3 Glanville Williams, in a note on England, concurred. Williams wrote that illegality 'is not one of the general defences recognised in tort'.4 It was not until well into the second half of the twentieth century that it became firmly established in England5 and in other parts of the Commonwealth6 that unlawful conduct by the claimant is an answer to liability in tort.

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