Jump to ContentJump to Main Navigation
Show Summary Details
More options …

Journal of European Tort Law

Editor-in-Chief: Oliphant, Ken

Ed. by Karner, Ernst / Koch, Bernhard A. / Wendehorst, Christiane

3 Issues per year

Online
ISSN
1868-9620
See all formats and pricing
More options …

Illegal Earnings

James Goudkamp
  • Corresponding author
  • Professor of the Law of Obligations, Oxford Law Faculty, UK; Fellow, Keble College, Oxford, UK; Associate Academic Fellow, Inner Temple; Senior Honorary Research Fellow, Faculty of Law, University of Western Australia, Australia; Professorial Fellow, School of Law, University of Wollongong, Australia; Barrister, 7 King’s Bench Walk, UKOxford Law Faculty, UK; Fellow, Keble College, Oxford, UK; Associate Academic Fellow, Inner Temple; Senior Honorary Research Fellow, Faculty of Law, University of Western Australia, Australia; Professorial Fellow, School of Law, University of Wollongong, AustraliaOxfordUnited Kingdom of Great Britain and Northern Ireland
  • Email
  • Other articles by this author:
  • De Gruyter OnlineGoogle Scholar
/ Lorenz König
  • Rechtsanwalt (lawyer), Sernetz Schäfer Rechtsanwälte, Munich, Germany; former Research Fellow at the Institute of International and Foreign Law at the University of Passau, GermanyUniversity of PassauResearch Fellow at the Institute of International and Foreign LawMunichGermany
  • Email
  • Other articles by this author:
  • De Gruyter OnlineGoogle Scholar
Published Online: 2018-05-07 | DOI: https://doi.org/10.1515/jetl-2018-0103

Abstract

This article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

About the article

Published Online: 2018-05-07

Published in Print: 2018-05-03


Citation Information: Journal of European Tort Law, Volume 9, Issue 1, Pages 54–80, ISSN (Online) 1868-9620, ISSN (Print) 1868-9612, DOI: https://doi.org/10.1515/jetl-2018-0103.

Export Citation

© 2018 Walter de Gruyter GmbH, Berlin/Boston.Get Permission

Comments (0)

Please log in or register to comment.
Log in