In pari turpitudine causa est melior possidentis

(a) Extension of the rule in modern German law

But does it matter whether the exclusive field of application of the condictio ob turpem vel iniustam causam has indeed been narrowed down to zero?¹⁸¹ Is there any point in determining whether the plaintiff may avail himself of this or any of the other condictiones? The whole discussion would, indeed, be rather academic were it not for the problem of the in pari turpitudine rule.

^H As has been claimed, correctly, it is submitted, by Honsell, Riickabwicklung, pp. 10 sqq.; others contend that a need for the condictio ob turpem vel iniustam causam still exists, but that its range of application is very small. For a discussion, see Reuter/Martinek, op. cit., note 174, pp. 175 sqq.; Lieb, op. cit., note 174, § 817, nn. 4 sqq.

^K "Gesetzesvereitlung": Philipp Heck, "Die Ausdehnung des §817, S. 2, auf alle Berekherungsanspruche", (1925) 124 Archivjiir die civilistische Praxis 24.

⁶⁸ RGZ 151, 70 (72); RGZ 161, 52 (55); BGHZ 44, 1 (6); BGHZ 50, 90 (91); approved and followed by the prevailing opinion in the literature: cf., for example, Reuter/Martinek, op. cit.. note 174, pp. 201 sq.

Cf., for example, RGZ 161, 52 (55); Reuter/Martinek, op. cit., note 174, p. 202. This is, however, against the express wording of § 817, 2 BGB ("gleichfalls").

^K Cf. supra, pp. 176 sq.

tion deserves at least as much protection as that of a borrower in not losing the capital.^[4429]

(b) "Sinister" and "disastrous" results

Then there is the problem^[4430] that the in pari turpitudine rule may be at variance with the basic proposition that immoral and illegal transac­tions are void. If both parties have carried out their respective obligations, exclusion of the right to bring enrichment actions leads to a perpetuation of the status quo: of a position, that is, of which the legal system expressly disapproves. The sanction of invalidity thus loses its practical effect. If, on the other hand, only one party has performed, application of the in pari turpitudine rule exposes him to a strange kind of double sanction: he may neither demand counterperformance nor is he allowed to claim back his own performance.^[4431] The eccentricity of those results is furthermore compounded by the fact that the in pari turpitudine rule is no longer confined to cases involving crimes and other grave infringements of the moral code: it applies to immoral and illegal transactions at large.

(c) The approach adopted by the South African courts

Much more in tune with the spirit in which the in pari turpitudine rule was once devised by the Roman lawyers is the attitude adopted in modern South African law.¹⁹⁴ Although they, too, no longer draw a distinction between immorality and lesser forms of illegality, the South African courts approach the matter in a much more flexible manner than their German counterparts.

"[Tjhe rule expressed in the maxim in pari delicto potior conditio defendentis is not one that can or ought to be applied in all cases;... it is subject to exceptions which in each case must be found to exist only by regard to the principle of public policy", said Stratford CJ, in the seminal decision ofjajbhay v. CassimJ⁹''' and Watermeyer JA, after a review of Roman and Roman-Dutch authorities,¹⁴¹¹ came to the same conclusion:

Dauner, "Der Kondiktionsausschluss gem. § 817 S. 2", 1980 Juristenzeittmg 495 sqq.; Reuter/Martinek, op. cit., note 174, pp. 199 sqq.; Konig, Bereichemng, pp. 130 sqq.; Lieb, op. cit., note 174, § 817, nn. 9 sqq.

¹⁴² Walter Wilburg, Entwicklun% eines beweqlichen Systems im biiryerlichen Recht (1950), p.

^IM BGHZ 8, 348 (373).

¹⁴¹ For a discussion, see Trakman, (1977) 94 SAL] 468 sqq.; De Vos, Verrykingsaanspreek- likheid, pp. 160 sqq.

¹⁴⁵ 1939 AD 537 at 544.

¹⁴⁵ At 547 sqq. On Roman-Dutch law cf. also De Vos, Verrykingsaanspreeklikheid, p. 68. Generally speaking, the in pari turpitudine rule docs not appear to have been of much practical relevance in the ius commune. Most writers contented themselves with mentioning the rule and referring to the examples discussed by the Roman lawyers (particularly the merctrix case: Ulp. D. 12, 5, 4, 3). Gluck, vol. 13, p. 59 mentions, in addition, the case of a person who appears to have persuaded a great number of farmers (in Franconia) to give him money and to accept, in return, a sealed box in which they would find, after some time and due to the machinations of an earth goblin, a multiple of the original sum After they had discovered the fraud, the farmers claimed their money back, but they lost their case on account of the in pari turpitudine rule. Cf. also Windscheid/Kipp, § 428, n. 11, who mention the rule only in a relatively obscure place. Occasionally it was argued that the recipient should not be allowed to keep his ill-gotten gains, but that the treasury should be able to take them from him; cf, for example, Stryk, Usus modermts pandectarum. Lib. XII, Tit. V, § 3; Gluck, vol. 13, p. 60; §§ 172 sq. I !6PrALR; cf. also Zweigcrt/Kotz, p. 310.

Since the days of the commentators, the in pari turpitudine rule was often regarded as one of the most important expressions of the general principle of "nemo auditur suam turpitudinem allegans"; nobody will be heard (in court) if he has to plead his own turpitude; or, in the words of Lord Mansfield (Hohnan v. Johnson (1775) 1 Cowp 341): "No Court will lend its aid to a man who founds his cause ot action upon an immoral or an illegal act." This maxim, developed by the glossators (cf. Fritz Sturm, "Aperc,u sur l'ongine du brocard Nemo auditur propiam turpitudinem allegans".

"The principle underlying the [in pari turpitudine] rule is that the Courts will discourage illegal transactions, bur the exceptions show that where it is necessary to prevent injustice or to promote public policy, it will not rigidly enforce the general rule."¹"⁷

The fact that the plaintiff has been guilty of dishonourable conduct docs not, therefore, constitute an absolute bar to an enrichment action. It is the balance of equities between the parties that the courts have to consider¹⁹⁸ and in this context they take account of, inter alia, the relative degree of turpitude displayed by plaintiff and defendant and the extent to which the contract has been executed.¹⁹⁹

4.