About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

18 Harv. L. Rev. 505 (1904-1905)
The Plaintiff's Illegal Act as a Defense in Actions of Tort

handle is hein.journals/hlr18 and id is 549 raw text is: PLAINTIFF'S ILLEGAL ACT AS A DEFENSE. THE PLAINTIFF'S ILLEGAL ACT AS A DEFENSE IN ACTIONS OF TORT. N order to avoid misapprehension as to the scope of this article, it should be stated at the start that it is not proposed to discuss cases in which the action is for the conversion of property obtained under an illegal contract, or cases in which it is alleged that the parties were jointly engaged in an unlawful enterprise. The discus- sion is to be confined to cases in which the relation of the parties did not arise out of an illegal contract, and in which the defendant was not acting in concert with the plaintiff, but was chargeable with negligence only. From these cases, again, are to be excluded those in which the question is whether or not the fact that the plaintiff's act was unlawful is evidence of contributory negligence. The cases to be considered are those in which physical damage has been done to the plaintiff's person or property through the defendant's negligent acts or omissions, so that an action would doubtless lie but for some unlawful act by the plaintiff which is alleged to have been a contributing cause of the damage. Further- more, those cases only are to be discussed in which the unlawful act was in no sense an offense against the defendant personally, but was a breach of some duty to the public for which the plaintiff might have been prosecuted criminally. The right of a plaintiff to recover in this class of cases has been one of the most disputed questions in the whole law of torts; yet there seems to be a general agreement as to the principles on which such cases are to be decided. It is conceded by all that, if the unlawful act was the cause, or a concurring cause, of the damage, the action is barred, and not otherwise. The whole con- troversy is as to what acts are to be considered causes and what mere conditions.' It must be admitted that the present strong I While all or nearly all of the courts of last resort in the United States that have had the subject under consideration agree in the legal proposition that any culpable negligence or any illegal act on the part of the plaintiff which essentially contributes to his injury will prevent a recovery, yet there is a marked difference of opinion as to what constitutes a contributory cause of injury. Per LooMIs, J., in Broschart v. Tuttle, 59 Conn. 1, 13. The United States Supreme Court appears to deny the whole doctrine that the action fails if the plaintiff's unlawful act was a concurring cause. Philadelphia,

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most