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Holman v Johnson (1775) 1 Cowp 341

The Claimant sold and delivered a quantity of tea to the Defendant. The contract was made in Dunkirk. The Defendant intended to smuggle the tea in to England. The Claimant was aware of the Defendant's intention. The Defendant never paid for the tea and the Claimant brought an action for the price of the tea.

Held:

The Claimant was entitled to recover. He had not himself committed any offence and played no part in the smuggling or received no benefit from it.


Lord Mansfield:

"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis."
 
Back to lecture outline on ex turpi causa in Tort Law