Professor Harriman contends 2 that the accomplishment or non-accomplishment of the illegal purpose is not a satisfactory test for determining whether or not one who rescinds should be allowed to recover:
"Thus if money is paid to induce one to commit a crime, to allow the recovery of the money before the commission of the crime would tend to induce the recipient of the money to commit the crime, and thereby insure the retention of the money; while if A were to transfer a ship to B in order that B might commit piracy, to allow A to recover the ship would tend to prevent the crime by depriving B of the means of committing piracy."
This distinction between the case of money paid or goods delivered in consideration of an illegal promise and that of money paid or goods delivered to be used as the instrument or means of accomplishing an illegal object was previously suggested by Sir William Anson in his treatise on contracts,3 earlier ease than Taylor v. Bowers, which occurred in 1867, and, notwithstanding the very high authority of the learned judge who expressed the law in the terms which I have read, I cannot help saying for myself that I think the extent of the application of that principle, and even the principle itself, may, at some time hereafter, require consideration, if not in this Court, yet in a higher tribunal; and I am glad to find that in expressing that view I have the entire concurrence of the Lord Chief Justice.").
1 Smith v. Richmond, 1902, 114 Ky. 303; 70 S. W. 846; 102 Am. St. Rep. 283, (money for bribes); Chapman v. Haley, 1004, 117 Ky. 1004; 80 S. W. 190, (sale of counterfeit money); Knowlton v. Congress, etc., Spring Co., 1874, 57 N. Y. 518, (but see Spring Co. v. Knowlton, 1880, 103 U. S. 49 : ultra vires increase of stock).
2 Harriman, "Contracts," Sec. 240.
3 See 4th ed., p. 200. "If A gives X £1000 in consideration of X undertaking to blow up Westminster Abbey or to write and publish a series of defamatory notices of M, it is assumed that A could not recover that money though at the end of six months Westminster Abbey was unharmed or the notices unwritten, and though X had the money at his bankers. But if A were to place £1000 to the account of X with a banker in order that X might buy dynamite to blow up Westminster Abbey, or purchase a share in the management of a newspaper with a but in the later editions of the book the point is not touched upon.1 The distinction, it is believed, is not well taken. It is true that one's intent to commit an offense against the law is more likely to be forestalled by depriving him of the means of committing it than merely by requiring the return of the consideration received by him. But it is not true that to require the return of the consideration "would tend to induce the recipient of the money to commit the crime, and thereby insure the retention of the money." For the rule is not that the consummation of the illegal purpose before judgment of restitution, or before the commencement of the action, will defeat a recovery. The right to restitution arises at the instant of rescission, and the subsequent commission of the contemplated offense by the other party will not "insure the retention of the money." It may be argued that knowledge of the doctrine and the consequent fear of rescission may lead the recipient of the money or goods to secure himself by hastening to perform his unlawful undertaking before the other party repents. But if the right to restitution is denied, the recipient of the money or goods may carry out the illegal transaction at his leisure. Moreover, this consideration is offset by another of equal importance - that such knowledge of the doctrine and consequent fear of rescission tends to prevent the formation of illegal contracts.
It is submitted, therefore, that while the doctrine is in no case certain to avert the violation of law, it tends so to do; and that this is true in the case of money or goods furnished in consideration of an unlawful undertaking as well as in that of money or goods furnished as a means of affecting an unlawful end.