Illegal Agreements and the Lesser Evil Principle

Abstract

This Article builds on the existing scholarship on illegal agreements and joins the search for “consistency and rationality.” It offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. The author advocates for an explicit recognition of the lesser evil principle in private law, drawing upon courts’ explicit adoption of the principle in criminal and tort law and its implicit adoption of the principle when resolving illegal agreement disputes.

Keywords: contracts, illegal agreements, jurisprudence