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Section 54. Agreements Which Involve Immorality

Agreementswhich either directly or indirectly tend to violate the established rules of decency and
morality are void, as being against public policy. Most of the contracts which come under this class
are those involving sexual immorality. Sexual intercourse between persons not married to each other,
unless it is open and notorious, or unless one of the parties is married, or unless there are some other
aggravating circumstances, is not a crime at common law. The same is true in the states of this
country, with three or four exceptions, but such acts are nevertheless illegal. Both at common law, and
in this country, a promise made inconsiderationof present or future illicit intercourse is void, on the
ground that the consideration is illegal.47 If the promise is in consideration of past illicit intercourse,
the courts hold that it is unenforceable as being given without consideration; the alleged consideration
being considered as nullity in such cases.48 A few states hold that if such intercourse was
accompanied by seduction, there is sufficient consideration to support a parol promise.49 Even a
promise to marry in consideration of present or future illicit intercourse is void.50 Such a promise,
however, in consideration of past illicit intercourse, if made under seal would be upheld.51
Thesaleof property to be used for immoral purposes, or which is to be paid for out of money earned
by immoral acts is void, if the seller intended the property to be used for such purposes or had
knowledge of such intention on the part of the purchaser. The leading case under this subject is Pearce
vs. Brooks,52 the decisions in which case rendered by two of the judges, were as follows:
(Bramwell). "At the trial I was at first disposed to think that there was no evidence on this point, and I
put it to the jury, that, in some sense, everything which was supplied to a prostitute is supplied to her
to enable her to carry on her trade, as, for instance, shoes sold to a street-walker, and that the things
supplied must be not merely such as would be necessary or useful for ordinary purposes, and might be
also applied to an immoral use; but they must be such as would under the circumstances not be
required, except with that view. The jury, by the mode in which they answered the question, showed
that they appreciated the distinction; and on reflection, I think they were entitled to draw their
inference, which they did. They were entitled to bring their knowledge of the world to bear upon the
facts proved. The inference that a prostitute (who swore that she could not read writing), required an
ornamental brougham for the purposes of her calling, was as natural a one as that a medical man
would want a brougham for the purpose of visiting his patients; and the knowledge of the
defendant'sconditionbeing brought home to the plaintiffs, the jury were entitled to ascribe to them also
the knowledge of her purpose.
47 Goodal vs. Thurman, 1 Head (Tenn.), 209; Forsythe vs. State, 6 Ohio, 20; Walker vs. Gregory, 36,
Ala., 180.
48 Wyant vs. Lesher, 23 Pa. St.,
338; McDonald vs. Fleming, 12 B. ion. (Ky.), 285.
49 Smith vs. Richards, 29 Conn.,
232. 50 Baldy vs. Stratton, 11 Jones, 316. 51 Bivins vs. Jarnigan, 3 Baxter,
282 52 Law Rep., 1 Exch., 213
"Upon the second point, the case of Bowry vs. Ben-net, 1 Camp, 348, falls short of proving that the
plaintiff must intend to be paid out of the proceeds of the illegal act. The report states that the
evidence of the plaintiffs' knowledge of the defendant's way of life was 'very slight'; and Lord
Ellenborough appears to have referred to the intention as to payment, not as a legal test, but as a
matter of evidence with reference to the particular circumstances of the case. The goods supplied
there were clothes; without other circumstances there would be nothing illegal in selling clothes to a
known prostitute; but if it were shown that the seller intended to be paid out of her illegal earnings,
the otherwise innocent contract would be vitiated. Neither is Lloyd vs. Johnson, I. B. & P., 340, cited
in thenoteto the last case, anauthorityfor the plaintiffs, for these part of the contract would have been
innocent, and all that the Court says, is, that it cannot 'take into consideration which of the articles
were used by the defendant to an improper purpose, and which were not'; they had no materials for
doing so. The present case rather resembles the case of Crisp vs. Churchill cited in Lloyd vs. Johnson,
I.B. & P., 340, where the plaintiff was not allowed to recover for the use of lodgings let for the
purpose of prostitution. Appleton vs. Campbell, 2 C. & P., 347, is to the same effect."
(Pollock). "We are all of opinion that this rule may be discharged. I do not think it is necessary to
enter into the subject at large after what has fallen from the bench in the course of the argument,
further than to say that since the case of Cannan vs. Bryce, 3 B. & A., 179, cited by Lord Abinger in
delivering the judgment of this court in the case of M'Kinnell vs. Robinson, 3 M. & W., at p. 441, and
followed by the case in which it was so cited, I have always considered it as settled law that any
person who contributes to the performance of an illegal act by supplying a thing with the knowledge
that it is going to be used for that purpose, cannot recover the price of the thing so supplied. If, to
create that incapacity, it was ever considered necessary that the price should be bargained or expected
to be paid out of the fruits of the illegal act (which I do not stop to examine), that proposition has been
overruled by the cases I have referred to, and has now ceased to be law. Nor can any distinction be
made between an illegal and an immoral purpose; the rule which is applicable to the matter is, Ex
turpi causa non oritur actio, and whether it is an immoral or an illegal purpose in which the plaintiff
has participated, it comes equally within the terms of that maxim, and the effect is the same; no cause
of action can arise out of either the one or the other. The rule of law was well settled in Cannan vs.
Bryce, 3 B. & A., 179; that was a case which at the time it was decided, I, in common with many
other lawyers in Westminster Hall, was at first disposed to regard with surprise. But the learned judge
(then Sir Charles Abbott), who decided it, though not distinguished as an advocate, nor at first
eminent as a judge, was one than whom few have adorned the bench with clearer views, or more
accurate minds, or have produced more beneficial results in the law. The judgment in that case was, I
believe, emphatically his judgment; it was assented to by all the members of the Court of King's
Bench, and is now the law of the land. If, therefore, this article was furnished to the defendant for the
purpose of enabling her to make a display favorable to her immoral purposes, the plaintiffs can derive
no cause of action from the bargain. I cannot go with Mr. Chambers in thinking that everything must
be found by a jury in such a case with that accuracy from which ordinary decency would recoil. For
criminal law it is sometimes necessary that details of a revolting character should be found distinctly
and minutely, but for civil purposes this is not necessary. If evidence is given which is sufficient to
satisfy the jury of the fact of the immoral purpose, and of the plaintiff's knowledge of it, and that the
article was required and furnished to facilitate that object, it is sufficient, although the facts are not
expressed with such plainness as would offend the . sense of decency. I agree with my brother,
Bramwell, that the verdict wasright, and that the rule must be discharged."
In an American case it has been held that a person who rents property to be used for immoral purposes
cannot recover the rent.53 An agreement to pay for silence as to illicit intercourse is good; it being
said that, "There is no rule of public policy which forbids such a contract for silence so long as it is
not in contemplation to conceal and prevent the punishment of a crime. * * * The public morals will
surely not suffer by the suppressing of such scandals." 54
53 Dougherty vs. Seymour, 16 Col., 289, 16 Pac. Rep., 823.

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