¹ Cp. Williston, , Contracts, revised ed., § 1761Google Scholar: ‘Not the illegality of the contract, but the illegality of the plaintiff's conduct either in entering into or in performing the contract is the true ground for denying recovery.’See also the classification in Salmond & Winfield, Contracts, 144–6.Google Scholar

² But a clause in the contract excluding liability for future negligence remains binding (Vita Food Products v. Unus Shipping Co. [1939] A. C. at p. 300–1Google Scholar), probably because it lets in the defence of volenti non fit injuria in tort, which is independent of contract.

³ Pollock, , Contract, 10th ed., 327–33Google Scholar; Anson, , Contract, 18th ed., 211.Google Scholar See, in particular, the revenue cases reviewed by McCardie J. in Brightman & Co., Ltd. v. Tate [1919] 1 K. B. 463, at p. 469Google Scholar, and Williston, , § 1768.Google Scholar See also the collection of cases in Eng. and Emp. Digest, xii, 260–74.Google Scholar

In the U.S. the failure to procure an occupational or business licence has been held not to affect the validity of contracts, even though the action is by the party in default, if denial of recovery would be wholly out of proportion to the requirements of public policy: Williston, , revised ed., 1939 Supp. to vol. 5, p. 57Google Scholar (additional note to § 1630, n. 7).

⁴ See, e.g., Brightman & Co., Ltd. v. Tate [1919] 1 K. B. 463Google Scholar; Williston, § 1650.

⁵ Bensley v. Bignold (1882) 5 B. & Ald. 335Google Scholar; Williston, , § 1761Google Scholar; but in the U.S. slight illegality in performance is sometimes disregarded: Williston, , § 1767.Google Scholar

⁶ L. R. 8 Q. B. 202, at p. 208. Cp. Nash v. Stevenson Transport, Ltd. [1936] 1 All E. R. 906.Google Scholar

⁷ But according to the Restatement of the Law of Contracts (hereinafter cited as Restatement), § 599Google Scholar, ‘where the illegality of a bargain is due to … (b) statutory or executive regulations of a minor character relating to a particular business which are unknown to one party, who is justified in assuming special knowledge by the other party of the requirements of the law, the illegality does not preclude recovery by the ignorant party of compensation for any performance rendered while he is still justifiably ignorant, or for losses incurred or gains prevented by non-performance of the bargain.’ In other words, this is a case where ignorance of the law is regarded as excusable. Cp. Williston, , §§ 1631, 1767.Google Scholar

⁸ [1921] 2 K. B. 716.

⁹ Cp. Williston, , § 1629A.Google Scholar

¹⁰ Contract, 10th ed., 439.Google Scholar

¹¹ Williston, , § 1758.Google Scholar For the case of change of purpose regarding performance not unlawful in itself, see Williston, , § 1760.Google Scholar

¹² Pearce v. Brooks (1866) L. R. 1 Ex. 213Google Scholar; Upfill v. Wright [1911] 1 K. B. 506Google Scholar; Alexander v. Rayson [1936] 1 K. B. 169.Google Scholar But according to the Restatement, § 602Google Scholar (1), ‘where a bargain is illegal only because of the improper use which one party to the bargain intends to make of what he obtains thereunder, knowledge of this purpose by the other party does not preclude recovery of damages for what has been obtained unless the intended purpose involves serious moral turpitude, or unless a statute prohibits recovery.’ Cp. Williston, , §§ 1754–6Google Scholar, and cases in Eng. and Emp. Digest, xii, 275–7.Google Scholar

¹³ Anson, , Contract, 18th ed., 248Google Scholar; Williston, , § 1757.Google Scholar

¹⁴ Salmond, & Winfield, , Contracts, 157–9Google Scholar; Restatement, § 577Google Scholar, Comment b, § 599; Williston, , §§ 1629A, 1670.Google ScholarPollock, , Contract, 10th ed., 412, 441Google Scholar, speaks of A as being entitled to ‘rescind’ the contract when he discovers B's purpose, and of the contract then being ‘voidable’ by him. It is submitted that these words do not mean that if A refuses to go on with the contract he has no remedy under it.

¹⁵ It may be otherwise if his illegal purpose is only indirectly connected with the contract. An insurance of furniture in a bawdy house has been held valid in Missouri, invalid in Quebec: see (1910) 23 Harvard Law Review, 635–6. See also Allen, C. K. in (1938) 54Google ScholarL. Q. R. 211, n. 19.Google Scholar

¹⁶ Toulmin v. Anderson (1808) 1 Taunt. 227Google Scholar; Wilkinson v. Loudonsack (1814) 3 M. & S. 117Google Scholar; Salmond, & Winfield, , Contracts, 159.Google Scholar

¹⁷ It is submitted that he can equally recover damages from B even though he knew at the date of the contract that the watch did not belong to B, provided that he believed that B intended to acquire the ownership in it before the time when the property was to pass, or that B was warranting that he would either acquire the ownership or pay damages for non-delivery. The Sale of Goods Act, 1893, s. 12 (1), contemplates that a person may agree to sell goods to which he is not at present entitled, for in the case of an agreement to sell the implied undertaking as to title is simply that the seller ‘will have a right to sell the goods at the time when the property is to pass.’

¹⁸ Query the need for this word.

¹⁹ § 599, Illustration 2.

²⁰ In two Niai Prius cases the printer failed to recover, but the pamphlet was obviously immoral or libellous: Fores v. Johnes (1802) 4 Esp. 97Google Scholar; Poplett v. Stockdale (1825) R. & M. 337, 2 C. & P. 198.Google Scholar In Clay v. Yates (1856) 1 H. & N. 73Google Scholar, a printer was allowed to recover for the printing of a treatise, where a libellous dedication was afterwards written for it. No claim was made in respect of the printing of the dedication, although this work had been completed by the printer before he discovered its libellous character. See also Apthorp v. Neville (1907) 23 T. L. R. 575.Google Scholar

²¹ 7 C. B. 999. Cp. Daniel v. Bowles (1826) 2 C. & P. 553.Google Scholar

²² 5 Ex. 775 (Pollock C.B. dissenting).

²³ Some writers find difficulty with the decisions in the two cases on the point of consideration (e.g., Hope in 32 H. L. R. 679); but cp. Williston, §§ 1933.4.

²⁴ [1908] 1 K. B. 720, at p. 723.

²⁵ [1908] 1 K. B. 729 (C. A.).

²⁶ Cp. Salmond, & Winfield, , Contracts, 167–9Google Scholar; Williston, , § 1631.Google Scholar

²⁷ Restatement, § 572Google Scholar, expresses the rule in a slightly different form: ‘A bargain to indemnify another against the consequences of committing a tortious act is illegal unless the performance of the tortious act is only an undesired possibility in the performance of the bargain, and the bargain does not tend to induce the act.” See also Williston, , §§ 1692A, 1631, 1751.Google Scholar

²⁸ Daily Mirror Newspapers, Ltd. v. Exclusive News Agency (1937) 81 Sol. Jo. 924Google Scholar: the defendants supplied the plaintiffs with a wrongly-captioned photograph; the defendants were held liable to indemnify the plaintiffs against the damages that they had to pay for libel. See also Birmingham, etc. Land Co. v. L. & N. W. R. (1886) 34 Ch. D. at pp. 272, 274–5Google Scholar; Sheffield Corp. v. Barclay [1906] A. C. at p. 397Google Scholar (Lord Halsbury). Also Fletcher v. Harcot (1622) Hut. 55.Google Scholar For authorities on indemnities against breach of contract and breach of trust, see below, note 36.

²⁹ W. H. Smith & Son v. Clinton (1908) 99 L. T. 840Google Scholar; cp. P. H. W. in (1933) 49 L. Q. R. 162. Shackell v. Rosier (1836) 2 Bing. N. C. 634Google Scholar, was a peculiar case where the contract of indemnity was made after the commencement of the libel action against A, the consideration being that A should defend the action. The indemnity was held void. But see Williston, , § 1751, n. 12.Google Scholar

³⁰ Law Reform (Married Women and Tortfeasors) Act, 1935 (c. 30), Part II.

³¹ Tinline v. White Cross Insurance Association [1921] 3 K. B. 327Google Scholar; James v. British General Insurance Co. [1927] 2 K. B. 311Google Scholar; cp. Williston, , § 1751.Google Scholar For another case in which contractual indemnity against liability for negligence was held valid, see Newcombe v. Yewen (1913) 29 T. L. R. 299.Google Scholar

³² [1933] 1 K. B. 822.

³³ Road Traffic Act, 1930 (c. 43); Road and Rail Traffic Act, 1933 (c. 63), s. 33; Road Traffic Act, 1934 (c. 50); Third Parties (Rights against Insurers) Act, 1930 (c. 25).

³⁴ [1920] A. C. 956, affirming [1919] 1 K. B. 520 (C. A.); followed by Luxmoore J. in Bradstreets British, Ltd. v. Mitchell [1933] Ch. 190.Google Scholar Cp. Winfield in (1936) 14 Canadian Bar Review, 661.

³⁵ [1920] A. C. at p. 997.

³⁶ See cases collected in Chalmers, , Sale of Goods, 11th ed., 143Google Scholar, n. (i). One of these cases, Agius v. G. W. R. [1899] 1 Q. B. 413Google Scholar (see, particularly, per Lord Halsbury L.C. at pp. 418–9), was referred to with approval in Weld-Blundell v. Stephens in the House of Lorda. See also Groves v. Webb (1916) 85 L. J. K. B. 1533, 114 L. T. 1082.Google Scholar

Likewise there is authority for saying that a contract to indemnify against liability for an innocent breach of trust is valid: per Farwell J. in Briggs v. Parsloe [1937] 3 All E. R. at pp. 838–9Google Scholar; Pollock, , Contract, 10th ed., 315, n. (m).Google Scholar

³⁷ [1913] 2 K. B. 220. See also Crage v. Fry (1903) 67 J. P. 240Google Scholar; Campbett v. C. (1840) 7 Cl. & F. 166, at p. 182Google Scholar (action for account against partner).

³⁸ [1915] 1 K. B. 652, following dicta in Colburn v. Patmore (1834) 1 C. M. & R. 73.Google Scholar In Weld-Blundell v. Stephens [1919] 1 K. B. 520Google Scholar, Scrutton L.J. dissenting, reserved the liberty to consider whether these dicta were correct.

³⁹ [1921] 2 K. B. 716.

⁴⁰ See the development of this strict interpretation of statutory offences traced by Jackson, R. M., ‘Absolute Prohibition in Statutory Offences,’ (1936) 6 Cambridge Law Journal, 83.Google Scholar

⁴¹ The judgments suggest that the decision might have been otherwise (1) if the statutory prohibition had been for the benefit of a particular person, and not for the benefit of the public (per Scrutton L.J. at p. 729), or (2) if the contract had been not prohibited by legislation but simply against public policy at common law (per Atkin L.J. at p. 731). It is not easy to gather the principle on which Atkin L.J. thought that this second distinction should be drawn. See as to (1), Restatement, § 601Google Scholar; Williston, , §§ 1632Google Scholar (where refusal to enforce would produce the very effect that the law seeks to guard against), 1770.

⁴² Bankes and Scrutton L. JJ. expressly loft open the possibility of the plaintiff having an action in deceit.

⁴³ [1899] 1 Q. B. 816.

⁴⁴ On the other hand, if the fraudulent misrepresentation docs not go to the legality of the transaction—i.e., if it is such that, even on the facts as stated, the transaction would be illegal,—the plaintiff cannot recover for the tort of deceit if to allow him to recover would be against public policy: Parkinson v. College of Ambulance [1925] 2 K. B. 1.Google Scholar It is submitted, however, that unless public policy is against it, a plaintiff ought not to be denied an action in tort merely because he is a wrongdoer. Cp. Dott v. Brickwell (1906) 23 T. L. R. 61Google Scholar; Neal v. Ayers (1940) 63 C. L. R. 524Google Scholar, noted (1941) 14 Aust. L. J. 68, 198, 424; Williston, , § 1791.Google Scholar In Parkinson's case it was clearly against public policy to allow the plaintiff to recover. Yet in some cases the maxim ex dolo malo non oritur actio has been applied against the plaintiff in tort, without any consideration being given to the public policy of the case. See Fivaz v. Nicholls (1846) 2 C. B. 501.Google Scholar In Hegarty v. Shine (1878) 14 Cox, 145Google Scholar, a woman who entered into an immoral cohabitation was held by the Irish C. A. to have no action in assault against the man for his concealment of venereal disease, with which she became infected. It will bo noticed that the action was not brought in deceit. In Siveyer v. Allison [1935] 2 K. B. 403Google Scholar, the defendant fraudulently represented that he could obtain a decree of nullity from his wife, and so put himself in a position to marry the plaintiff; on the strength of this the plaintiff entered into an immoral association with him. Greaves-Lord J. held that she could not recover damages in deceit in respect of this association, despite the fact that before she met the defendant she had been of moral character. The decision seems to be inconsistent with the practice of allowing a woman who has been seduced on the strength of a promise of marriage to recover aggravated damages in an action for breach of promise: Berry v. Da Costa (1866) L. R. 1 C. P. 331Google Scholar; Millington v. Loring (1880) 6 Q. B. D. 190Google Scholar (seduction and infection with disease). It also seems to be inconsistent with the public policy of the case, for who can doubt that to allow recovery to such a plaintiff would tend to decrease rather than to increase immoral associations? In some American jurisdictions the blind application of the ex turpi causa maxim has debarred plaintiffs who violate statutes against Sunday travelling from suing for injuries received in the course of such travelling, and has similarly outlawed plaintiffs who operate a car without a licence; but the weight of opinion is against this. See Pollock, , Torts, 14th ed., 138–9Google Scholar; Wigmore, , Cases on Torts (1912), ii., 171Google Scholarff.; Davis, Harold S., ‘The Plaintiff's Illegal Act as a Defence in Actions of Tort’ (1905) 18 Harv. L. Rev. 505Google Scholar, reprinted in Selected Essays on the Law of Torts (1924), 558Google Scholar; (1926) 39 Harv. L. Rev. 1088; (1926) 35 Yale L. J. 763 (purchase on Sunday of injurious beverage); (1929) 38 Yale L. J. 685; (1930) 39 Yale L. J. 743; Restatement, Torts, § 469Google Scholar; Harper, , Torts, § 136Google Scholar. In Australia and Canada the absence of a driving licence has been hold to bo irrelevant in tort: see (1930) 4 Aust. L. J. 89; (1928) 6 Can. B. R. 76; other Canadian cases are critically discussed by F. C. Cronkite in (1929) 7 Can. B. R. 67.

⁴⁵ [1936] 1 All E. R. 613.

⁴⁶ 28 L. T. 441. See also Bower, Spencer, Actionable Misrepresentation, 2nd ed., 68–9Google Scholar, and particularly at p. 69, n. (c) as to Ward v. Hobbs (1878) 4 App. Cas. 13.Google Scholar

⁴⁷ 3 Ch. D. 27, at p. 35.

⁴⁸ Sale of Goods Act, 1893, s. 50 (3).

⁴⁹ See Bower, Spencer, Actionable Misrepresentation, 2nd ed., 221–8.Google Scholar In the U.S. the majority of cases apply the contract measure of recovery in deceit (Fuller ‘The Eeliance Interest in Contract Damages’ (1936) 46 Yale L. J. at p. 409; Harper, , Torts, § 226)Google Scholar, but the Restatement (Torts, § 549)Google Scholar adopts the tort measure.

It seems that in a situation like that in Re Mahmoud, modern civil-law systems, applying the doctrine of culpa in contrahendo, give only the tort measure of damages: see Schwenk, Heinz in (1940) 15 Tul. L. Eev. 87.Google Scholar

⁵⁰ Fuller, & Perdue, , ‘The Reliance Interest in Contract Damages’ (1936) 46 Yale L. J. 52, 373.Google Scholar

⁵¹ Cp. the indignation felt by the Court towards the plaintiff and his solicitors in the highwaymen's case (1725), (1893) 9 L. Q. R. 197. In Pasquin's case, cited in 1 Camp. 351, an action was brought for libel; when it appeared that the plaintiff's writings were themselves libellous, Lord Kenyon ‘threw his parchment at his head, and dismissed him from the Court with infamy.’ ‘The Court drives both parties from its presence: procul este, profani!’: per MacKinnon L.J. in Harry Parker, Ltd. v. Mason [1940] 4 All E. R. at p. 202.Google Scholar ‘The matters proved in evidence … were matters more apt to be discussed in a thieves’ kitchen than in a Court of Justice ': per Jordan C.J. in Neal v. Ayers (1940) 40 S. R. (N. S. W.) 16, revd. 63 C. L. R. 524.Google Scholar

⁵² In Beresford v. Royal Insurance Co., Ltd. [1937] 2 K. B. at pp. 219–20Google Scholar, Lord Wright said that this maxim, ‘notwithstanding the dignity of a learned language, is lacking in precise definition.’

⁵³ In the well-known statement of Lord Mansfield in Holman v. Johnson (1775) Cowr. 341, at p. 343, both Latin maxims are rested on public policy, and it should follow that they should not be applied when public policy requires that recovery be allowed. ‘The real question at issue is whether in any particular case the ends of the law will be furthered or defeated by granting the relief asked’: (1913) 26 Harv. L. Rev. 740; cp. (1931) 45 Harv. L. Rev. 187. In (1891) 25 Am. L. Rev. at p, 712, Dean Wigmore criticized the in part delicio maxim, saying: ‘The whole notion is radically wrong in principle and produces extreme injustice … First, one guilty party suffers, while another of equal guilt is rewarded; secondly, the penalty is usually utterly disproportionate to the offence.’ Cp. Woodward, Quasi-Contracts (1913), § 135.Google Scholar See also above, note 44, and the next footnote.

⁵⁴ Consider the following cases:—(i) A man takes a lease in the name of his wife in order to defraud his creditors. There is a presumption of advancement, and the husband cannot successfully sue the wife for the restoration of the property. The only way in which he can rebut the presumption of advancement is by evidence of the fraudulent intent, and this evidence the Court will not listen to: Gascoigne v. G. [1918] 1 K. B. 223.Google Scholar But in Symes v. Hughes (1870) L. R. 9 Eq. 475Google Scholar, a plaintiff who had assigned his property in fraud of creditors was granted restitution when he was in effect suing as a trustee for the creditors. It seems, then, that the important point is not the unsavoury nature of the tale that the plaintiff has to tell (for this was the same in both cases), but the public policy of allowing recovery, (ii) If the rule stated in Salmond & Winfield, , Contracts, 151Google Scholar, is correct, it seems that if A lends B a dagger for the express purpose of murdering C, A can recover the dagger from B after the murder has been committed, for he can word his statement of claim without disclosing the illegality. This particular illustration is not given by the learned authors, and it is submitted that their statement of the rule is not correct. The proper rule is not that the plaintiff can recover if he can rely on his property-right, but that the plaintiff can recover if public policy does not demand that he be penalized to the extent of losing his property. Thus, in the above example, a Court would be entitled to refuse A recovery. The requirements of public policy seem to have been ignored in Farmer v. Russell (1798), 1 Bos. & P. 296Google Scholar; see also Tenant v. Elliott (1797) 1 Bos. & P. 3.Google Scholar

⁵⁵ Thus, if the plaintiff is not in pari delicto the Court will admit evidence of his illegality in order to give him a remedy in quasi-contract. Cp. Keener, , Quasi-Contracts (1893), 274–5.Google Scholar

⁵⁶ Cp. per Deasy L.J.A. in Hegarty v. Shine (1878) 14 Cox, 145, at p. 152.Google Scholar

⁵⁷ Per Lord Wright in Vita Food Products v, Unus Shipping Co. [1939] A. C. at p. 296.Google Scholar

⁵⁸ See New Zealand Shipping Co. v. Société des Ateliers [1919] A. C. 1Google Scholar, for the proposition that where a contract stipulates that it shall become ‘void’ in a certain event, this is read with the qualification that a party who by his own act or omission brings the event about cannot allege that the contract is void. ‘The rule is that in a contract “void” is to be read as “voidable,” if the result of reading it as “void” would be to enable a party to avail himself of his own wrong to defeat his contract. It may be stated either in the form that if one party is in default it is “void as against him,” or that if one party is in default it is “voidable at the option of the other party.” The two amount to the same thing. But the contract is not “void” in favour of or “voidable at the option of” the party in default’: per Lord Wrenbury, at p. 15. See also Stroud, Judicial Dictionary, s. v. ‘Void’; Benjamin, , Sale, 7th ed., 53Google Scholar; Toleman v. Portbury (1871) L. R. 6 Q. B. at p. 245Google Scholar; Re Hart [1912] 2 K. B. 6Google Scholar; Williston, §§ 1630, 1762, n. 7, 1704.

⁵⁹ Vita Food Products v. Unus Shipping Co. [1939] A. C. at p. 293.Google Scholar

⁶⁰ Above, p. 58.

⁶¹ It was held in Stockdale v. Onwhyn (1823) 5 B. & C. 173Google Scholar, that damages cannot be awarded for the loss of a profit that the plaintiff could not legally have made. But in that case the plaintiff knew of the facts giving rise to the illegality.

⁶² To this it may be answered that the cases put turn on revenue statutes, and that absence of a licence required for revenue purposes does not affect contracts whether the plaintiff knew of the want of the licence or not: cp. above, p. 51, n. 3. But as regards the methylated spirits, it may be doubted whether the requirement of the licence is purely for revenue purposes: cp. the indication of public policy in Revenue Act, 1889 (c. 42), s. 27 (4).

⁶³ It may be noted that where the Legislature intends a party to a contract to demand production of the other party's licence, it says so, as in the Firearms Act, 1920 (c. 43), s, 2 (3).

⁶⁴ Quoted in Maleverer v. Redshaw (1669/1670) 1 Mod. 35.Google Scholar

⁶⁵ By this terra I do not necessarily mean ‘the academic lawyer.’ In fact, the theoretical argument that is about to be advanced is probably the unexpressed point of view of many practising lawyers.

⁶⁶ Cp. Oliveorona, , Law as Fact, 28, 96, and passim.Google Scholar

⁶⁷ ‘A breach of contract would not be actionable if nothing legally wrong was involved in the breach’: per Lord Lindley in South Wales Miners' Federation v. Glamorgan Coal Co., Ltd. [1905] A. C. 239, at p. 253Google Scholar; cp. Lautorpacht, ‘Contracts to Break a Contract’ (1936) 52 L. Q. R. at pp. 507–8.

⁶⁸ Cp. Haile Selassie v. Cable and Wireless, Ltd. [1939] Ch. 182.Google Scholar

⁶⁹ JeromeFrank, , Law und the Modern Mind, Ch. V.Google Scholar

⁷⁰ Strangely enough, Maitland, in his Equity (ed. Brunyate, , pp. 16–18Google Scholar), denies that there was a conflict between law and Equity, but this is disproved by Hohfeld (Fundamental Legal Conceptions, p. 115 ff).Google Scholar

⁷¹ Sheriff of Middlesex's case, 11 Ad. & E. 273.Google Scholar It is not at all clear whether the sheriff is to be regarded as having broken a legal duty imposed by the House of Commons as a Court. In Stockdale v. Hansard (1839) 9 Ad. & E. 1Google Scholar, Patteson J. denied that the House of Commons by itself was the Court of Parliament; in the Sheriff of Middlesex's case, 11 Ad. & E. 273Google Scholar, Lord Denman C.J. said that it was unnecessary to discuss the question whether each House be or be not a Court. See also Fry L.J. in Royal Aquarium, etc., Ltd. v. Parkinson [1892] 1 Q. B. 431, at pp. 446–7Google Scholar; Plucknett, , Concise History of the Common Law, 3rd ed., 131–2.Google Scholar

⁷² I quote from memory, and should be grateful for the reference.

⁷³ Cp. per Farwell J. in Briggs v. Parsloe [1937] 3 All E. R. at p. 838.Google Scholar

⁷⁴ Mertens v. Home Freeholds Co. [1921] 2 K. B. 526Google Scholar; Anglo-Russian Merchant Traders and John Ball & Co.'s Arbitration [1917] 2 K. B. 679Google Scholar; J. W. Taylor & Co. v. Landauer & Co. [1940] 4 All E. R. 335.Google Scholar

⁷⁵ See above, pp. 54–5, and Pollock, , Contracts, 10th ed., 326Google Scholar, n. (u). See also Pollock, , op. cit., 329, n. (h), 440, para. (ii). (It is not easy to see the distinction between the agreements referred to by Pollock in paragraphs (i) and (ii) respectively on p. 440.)Google Scholar

⁷⁶ 8 E. & B. 647.

⁷⁷ See Winfield, , Province, of the Law of Tort, 177–8.Google Scholar ‘It[is] a contract, though implied’: per Lord Sumner in Edwards v. Porter [1925] A. C. at p. 46.Google Scholar

⁷⁸ [1905] A. C. 392, at p. 399, followed in Bamfield v. Goole, etc. Co., Ltd. [1910] 2 K. B, 94, at pp. 107–8, 113–4.Google Scholar

⁷⁹ If A does know of the first contract, his own contract may be void. See Lauterpacht, , ‘Contracts to Break a Contract’ (1936) 52Google Scholar L. Q. R. 494.

⁸⁰ A pretty question might arise if the agreement were to sell unique articles and both X and A sued for specific performance. Which of them would succeed? X, the first in making the contract ? Or the first to get judgment ? Or are the articles ‘rationed’ between them?