ABSTRACT
This article discusses the relationship between statutory illegality and common law illegality in contract law. Statutory illegality refers to contracts that are prohibited by legislation, whether expressly or impliedly. Common law illegality, meanwhile, refers to contracts tainted by illegality because their formation, performance, or purpose involves illegal conduct. The former type of ‘illegal contracts’ is necessarily unenforceable; the latter type may or may not be enforceable depending on the court’s evaluation of the ‘range of factors’ as set out in Patel v Mirza. This article argues that statutory illegality is distinct from common law illegality – the absence of one form of illegality does not imply the absence of the other. Properly interpreted, statutory illegality and common law illegality are independent doctrines providing alternative pathways to the denial of enforceability. The mere fact that the illegality arises from legislation, rather than the common law, does not mean that the application of the illegality principle should be confined to statutory interpretation.
Kwok, Kelvin Hiu Fai, The Relationship between Statutory Illegality and Common Law Illegality (April 22, 2026).
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