24-1 ILLEGAL CONTRACTS

Most jurisdictions have rules about the enforceability of illegal contracts and rules on dealing with the consequences, in particular whether restitution may be obtained by a party who is complicit in the illegality. There appear to be differences in approach between jurisdictions most noticeably on whether restitution is the presumption subject to exceptions or whether restitution is denied subject to exceptions. Policy considerations reflect the norms within each society and the balance considered appropriate to strike between restoring the parties to their prior positions or leaving the losses to lie where they fall.1