Illegal Contracts and Unjustified Enrichment

If a contract is treated as an illegal contract, the contracting parties are denied the contractual remedies which would normally be available to them on breach of contract. The contract may, however, have been partially performed. For example, one contracting party may have delivered goods and received no payment from the other contracting party. The availability of unjustified enrichment remedies in this type of situation has been a vexed question, not only in Scots law, but in many other jurisdictions. This article looks at the Scottish approach to the availability of enrichment remedies and also at the related question of whether it is possible for title to goods to pass under an illegal contract. The focus thereafter lies on options for reform, and, in particular, the use of legislative discretion.