Contracts promoting sexual immorality include any contract for sex outside marriage – including otherwise lawful homosexual and heterosexual activities. Such deeds, while not constituting criminal offences or civil wrongs, may still be regarded as immoral, and contracts which involve them will be treated as contrary to public policy and thus unenforceable.
Pearce v Brooks
The rule is not limited to contracts which directly concern sexual activity, as is shown by Pearce v Brooks (1866). In this case, there was a contract under which the claimants supplied the defendant with an ornamental broughman (a type of carriage) which was to be paid for by installments. After one installment has been paid, the broughman was returned in a damaged condition. The claimants sued for £15 compensation which was payable under a forfeiture clause in the agreement if the broughman was returned damaged. The defendant, however, was a prostitute, and there was evidence that she intended to use the broughman to attract customers. Moreover, it seems at least one partner in the claimant’s firm was aware of this. On this basis, the court held that this would be an illegal contract, so that the claimants would be unable to recover either under the contract or for the damage.
The knowledge of the claimants was relevant here, but not every contract with a known prostitute will be illegal. In Appleton v Campbell, the action was for the recovery of board and lodging in relation to a room rented from the claimant. The court held that the plaintiff could not recover if he knew that the defendant was a prostitute, and that she was using the room to entertain her clients. But:
‘…if the defendant had her lodgings there, and received her visitors elsewhere, the claimant may recover, although she be a woman of the town, because persons of that description must have a place to lay their heads.’
There are thus two factors necessary for the contract to be unenforceable. First, there must be knowledge that the other party is a prostitute and, second, knowledge that what was supplied under the contract is to be used for the purposes of prostitution.
One might expect that the same approach would apply to other ‘immoral contracts.’ The extent to which the other contracts are likely to be treated as ‘immoral,’ however, must now be considered in the light of the decision in Armhouse Lee Ltd v Chappell (1996).
In this case, the publishers of a magazine sought to recover payment for advertisements which had been placed by the defendants. The defendants resisted the claim on the basis that the content of the advertisements was illegal or immoral, since they related to telephone ‘sex lines.’ The trial judge found for the claimants.
On appeal, the Court of Appeal considered a range of ways in which the advertisements could be said to be illegal, including prostitution, obscenity, and conspiracy to corrupt public morals. All were rejected. In addition, the court refused to find that ‘public policy’ required the contracts to be treated as unenforceable. There was no evidence that any ‘generally accepted moral code condemned these sex lines’. Moreover, ‘it was undesirable in such a case, involving an area regarded as the province of the criminal law, for individual judges exercising a civil jurisdiction to impose their own moral attitudes’.
The decision of the trial judge was therefore upheld, and the contracts were enforceable by the plaintiffs. This case suggests it is unlikely that there will be any significant extension of the range of contracts that will be struck down on the basis of sexual ‘immorality.’ In the light of the Court of Appeal’s decision, it would seem likely that illegality will only operate to prevent the enforcement of a contract where the behaviour concerned amounts to, or involves, a criminal offence.