All restitutionary claims, regardless of the underlying cause of action, are subject to a defence of illegality. This stems from the fundamental principle of law, known as ex turpi causa non oritur actio, that the courts will generally not assist the claimant to obtain a remedy where his or her action is founded on an illegal transaction. There is, however, another principle which is particularly relevant to restitutionary claims, and this is known as the in pari delicto potior est conditio defendentis defence. If the claimant seeks restitution in connection with a transaction which was tainted by illegality, the claim may be defeated by the in pari delicto defence. This chapter discusses the general principles of illegality, illegality at common law, consequences of a transaction being tainted by illegality, methods for avoiding the operation of the in pari delicto defence, vindication of proprietary rights despite illegality, and reform of the law.
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