clr/1984/1984_1_444.pdf

(1)and 23 of Cap. 149 (supra). ^ublic Officers—Contracts for services by—Without permission of the Minister of Financeundersection 64 of the PublicServiceLaw, 10 1967 (Law 33/67)—K«i/for illegality—Sections 10

(1)and 23 of the Contract Law, Cap.

1. The appellants were a company limited. The respondent plaintiff who was a public officer holding the post of Senior Civil Engineer in the Water Development Department of the 15 Republic was married to the sister of the Managing Director of the appellants. In November, 1979, the respondent agreed with the appellants to draw and prepare for them architectural drawings, specifications, etc. for the erection of a building of theirs at the agreed remuneration of 2 1/2% on the amount of 20 the construction of the building and 2 1/2% for the supervision of the execution of the project. Drawings and specifications were prepared by the respondent; tenders were invited and a building contractor was awarded the contract at the agreed amount of £98,
2. The drawings and specifications, etc., 25 were signed by P.W. 2, Neophytos Demetriou, a Registered 444 ] C.L.R. Glamor Development v. Christodouloa Civil Engineer under theArchitectsand Civil Engineers Law.for thepurpose of submitting same to the appropriate authority for the issue of the relative building permit. The reason given for this was that, under the relevant Law, the respondent was not entitled tosignthesaiddocuments. Duetofamily disputesthe marriage of the respondent wasdisrupted and ultimately dissolved; and theappellants engaged other architects for the supervision of the execution of the works. Nothing was paid to the respondent for his agreed remuneration and he resorted to the District Court of Nicosiaclaiming£2,450.-agreed and/or reasonable remuneration for services rendered, as aforesaid. The appellants-defendants by their statement of defence contended that the contract was illegal* and, consequently, void. The trial Judge held that the Public Service Law, 1967 (Law 33/67) simply regulates the conditions of service of public servants: that it did not restrict their right to private employment; that violation of section 64of Law 33/67gave rise onlyto adisciplinary offence; and that the contract was not vitiated by illegality. 5 10 15 20 Upon appeal by the defendants thefollowing issuearose for consideration: Wasa contract ofserviceorservicesofa publicofficer without the permission of the Minister of Finance, contrary to s.64 of the Public Service Lav, 1967 (Law No. 33/67), void for illegality.** 25 Held, that the contract is illegal as it infringes the provisions of section 64of the PublicService Law, 1967(Law33/67); that it is illegal because it is forbidden by Law; that it is illegal because, if permitted, it would defeat the provisions of the same Law; and it is illegal as opposed to public policy; that consequently, under the provisions of s.23 of the Contract Law. Cap. 149,theconsideration of theagreement of the litigantswas unlawful; and that in view of the provisions of s.lO(l) and s. 23 of the Contract Law, the agreement is void as the consideration was unlawful; and that accordingly the appeal must be allowed. Appeal allowed. 30 35 * The contention was based on section 64 of the Public Service Law, 1967 (Law 33/67) which is quoted at pp. 448-449 post. ·* Illegality of contracts is governed by section 23 of the Contract Law, Cap. 149 which is quoted at p. 449 post. 445 Glamor Development v. Christodoutou

(1984)Cases referred to: HjiTheodossiou v. Koulia and Another

(1970)I C.L.R. 310; UniversalAdvertising andPublishing Agency v. Vourot. I9C.L.R. 87 at p. 94; Marcou v. Michael, 19 C.L.R. 282; 5 Tseriotis v. Christodouloa. 19 C.L.R. 216; Queen v. Herodotou, 19 C.L.R. 144; Protopapas r. Gunther and Another

(1974)12 J.S.C. 981; Konaris v. Tosoun

(1969)I C.L.R. 637; Archbolds (Freightage) Ltd. v. S. Spanglett Ltd.. Randall (Third 10 Parly) [1961] I All E.R. 417; Cope v. Rowlands, 150 E.R. 707 at p. 710; ' Liverpool BoroughBank v.Turner[1860] 30 L.J. Ch. 379; Vita Food Products v. UnitsShipping Co. [1939] I All E.R. 513 at p. 523; 15 5/. John Shipping Corp. v. Joseph Rank Ltd. [1956] 3 All E.R. 683 at p. 687; Shaw v. Groom [1970] I All E.R. 702; Egerton v. Brownlow [1843-60] All E.R. Rep. 970 at p. 995; Mogul Steamship Co. v. McGregor Gcw and Co. [1892] A.C 25 20 at p. 45 (H.L.); In re Mirams [1891] 1 K.B. 594; Janson v. Driefontein Consolidated Mines Ltd. [1902] A.C. 484 at p. 491; South Pacific Co. v. Jensen

(1917)244 U S . 205 at p. 221; 25 Fender v. Mildmay [1937] 3 All E.R. 402; Holman v. Jo/utson [17751 1 Cowp. 343; Scott v. Brown, Doering, McNab & Co. [1892] 2 Q.B. 728; North - Western Satt Co. Ltd. v. Electrolytic Alcalic Co. Ltd. [1914] A.C. 461; Snelt v. Unity Finance Ltd. [1963] 3 All E.R. 50. Appeal. Appeal by defendants against the judgment of the District Court of Nicosia (Kronide,. D.J.) dated the 17th October, 1983 (Action No. 557/82) whereby they were ordered to pay to plaintiff 35 the sum of £2,450.- as his remuneiation for the drawing and 446 30 1 C.L.R. 5 Glamor Development v. Christodouloti preparation for the defendants architectural drawings for the erection of a building. A. E. Pandelides, for the appellants. D. Papachrysostomou,for the respondent. Cur. adv. vult. A. Loizou J.: Thejudgment of the Court will be deliveied by Mr. Justice Stylianides. STYLIANIDES J.: This appeal raises a single but very impoitant question: Is a contract of service or services of a public 10 officer, without the permission of the Minister of Finance, contrary tos.64 of the PublicService Law, 1967 (Law No. 33/67), void for illegality? The salient facts of the case are:The appellants are a company limited. The respondent15 plaintiff is a pubhc officer holding the post of Senior Ci ή\ EngineerintheWater Development Departmentof theRepubhc. The respondent was married to the sister of the Managing Director of the appellants. In November, 1979, the respondent agieed with the appellants 20 to draw and prepare for them architectural drawings, specifi­ cations, etc., foi the erection of a building in the touristic area of Paralimni at theagreed remunerationof 2 1/2% ontheamount of the construction of the building and 2 1/2% for the super­ vision of the execution of the project. Drawings and speci25 fications were prepared by the respondent; tenders were invited and a building contractorwas awarded thecontractatthe agreed amount of £98,000.-. The drawings and specifications, etc., were signed by P.W.2, Neophytos Demetriou, a Registered Civil Engineer under the 30 Architects and Civil Engineers Law, for the purpose of sub­ mitting same to the appropriate authoiity for the issue of the relative building permit. The reason given by this witness is that, under the relevant Law, the respondent was not entitled to sign the said documents. In other words, this witness lent his 35 signature to his friend, the respondent. Due to family disputes the marriage of the respondent was disrupted and ultimately dissolved. Apparently due to these 447 Stylianides J. Glamor Development τ. Christodotdoa

(1984)family disputes the appellants engaged other architects,namely» David,Dikeos&Associates, for thesupervision of theexecution oftheworks. Nothingwaspaidtotherespondentfoi hisagreed remuneration and he resorted to the District Couit of Nicosia claiming £2,450.-agreed and/or reasonable remuneration foi services rendered, as aforesaid. 5 The appellants-defendants by their statement of defence contended thatthecontractwas illegal and,consequently, void. The learned trial Judge held that the Public Service Law, No. 33/67, simply regulates the conditions of service of pubhc ser- 10 vants. It does not restrict their right to private employment. Violation of s.64 gives rise only to a disciplinary offence. The contract was not vitiated with illegality. Thetrial Judge issued judgment for the respondent against the appellants for the amount claimed. 15 Section 64 of ihe Public Service Law reads as follows:"64. -

(1)Save where express provision is made to the contrary in theterms of his appointment, the whole of the time of a public officer shall be at the disposal of theRe­ public. 20

(2)A public officer whose whole timeis at thedisposal of the Republic shall not practise any piofession or trade or employ himself or participate in any occupation ot bu­ siness: Provided that in exceptional circumstances and on the 25 recommendation of the appropriate authority concerned, the Minister of Financemay grant permission to an officer foi pait-time employment or engagement so long as such employment or engagement does not either diiectly or indirectly interfere with the efficient performance of the 30 public duties of the officer: Provided further that any such permission may be sub­ ject to a condition that the whole or any part of any re­ muneration payable in respect of any such employmentor engagement shall be paid into the public revenue." Section 73(l)(b) and

(2)of the same Law provides:"

(1)A public officer isliable to disciplinary proceedings if(

1. a)448 35 1 C.L.R. Glamor Dewtopmmt τ. Christodoak» StyUoMa J. (
2. b)hecommits an actor omission amounting to a con­ travention of any of the duties or obligations of a public officer. 5 10

(2)Forthepurposes ofthissection 'duties or obligations ofa publicofficer' includesanyduty orobligation imposed on a public officer under the lawof the RepubUcorunder thisLaworanyotherlawinforcefoithetimebeingorunder any public instrumentmadethereunderorunderany order or direction issued." Illegality of contracts is governed by s.23 of ourContiact Law, Cap. 149, which reads:"23. Theconsiderationorobject of an agreementis lawful, unless (

1. a)it is forbidden by law; or 15 (
2. b)is of such a nature that, if permitted, it would defeat the provisions of any law; or (
3. c)is fraudulent; or (
4. d)involvesorimplies injury totheperson orpropertyof another; oi 20 (
5. e)the Court regards it as immoral,or opposed topublic policy. In each of these cases, the consideration or object ofan agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." 25 This is a replica of the same section in theIndianContract Act. Itpurpoited to codify theCommonLaw onthe subject of illegal contracts. When theCommonLawwasintroducedinthiscountryby way of Codes -theContract Law, 1930(nowCap. 149), the Civil 30 Wrongs Law, 1932(nowCap. 148),the Criminal Code,1928 (now Cap. 154)- in every oneof the said Codes anidentical provision was enacted for- the interpretation of each Codein accordance with the principles of legal interpretation obtaining in England. Ininterpreting andapplying these statutory pro35 visions, however, we should notconsider them as Procrustean beds. 449 Stylianides J. Glamor Development τ. Christodoulou

(1984)In Hji-Theodossiou v. Koullia& Another,

(1970)1C.L.R. 310, Vassiliades, P.,in dealing with the Civil Wrongs Law, Cap. 148, and in this respect we cannot distinguish between the Contract Law and the Law of Civil Wrongs, at p. 323 said:"These provisions originate and purport to codify the 5 English Common Law regarding the tort of negligence. But here in Cyprus, being statutory provisions, they must be read, interpreted and applied in such a manner as to give effect to the will and intention of the legislator; same as all other statutory provisions are construed and applied by 10 the Courts,in theirfunction of fitting the law of thecountry to the living conditions therein; and of developing it under the accepted rules of construction, so as to keep pace, wherever possible, with the developing conditions in the particular field which the legislator intended to serve by 15 making the statute; until such statutory provisions be amended or replaced by subsequent legislation. How simi­ lar statutory provisions areconstrued and applied in another jurisdiction, is extremely helpful to the Judge; but he must never lose sight of the fact that the statutory provisions 20 whichhe is called uponto construeand apply weremade by the countrfs legislator with the object and intention of serving the people of this country; and they must,therefore, be construed and appliedaccordingly". On the interpretation of the aforesaid Codes see, inter alia, 25 Universal Advertising and Publishing Agency v. Panayiotis A. Vouros,19C.L.R. 87, at p. 94; ChristosMarcou v. Gregoria Michael, 19 C.L.R. 282; Christodoulos Nicola Tseriotis v. Chryssi Christodoulou, 19 C.L.R. 216; The Queen v. Choralambos Herodotou, 19 C.L.R. 144. 30 In Protopapas v. Gunther & Another,

(1974)12 J.S.C. 981, it was held that the rule in Bain v. Fothergill is not applicable in Cyprus. At p. 1006 I said:"Laws are made for man and not man for laws. They are adapted to meet the variety of situation and circumstances in every day; they are developed so as to meet the needs of the people of this country. The introduction in our system of law of the exception of Bain v. Fothergill will create confusion and unnecessary litigation". 450 35. 1 C.L.R. Glamor Development v. Christodoulou Stylianides J. Having said the above on the interpretation of the Codes that introduced the Common Law in this country, it is observed that the phraseology of s.23 of the Contract Law is not happy. Be that as itmay, wehave to consider first whether the agreement is 5 forbidden by Law. Statutes often provide expressly foi the civil consequences of breach of their provisions and this is by far the preferable solution. The Animals Certificates Law, Cap. 29, s.7, reads:10 "Irrespective ofanyproceedingswhichmay behad or taken, a sale of any animal in contiavention of the provisions of section 4 or 5 of this Law shall be void and of no effect." That section came up for judicial consideration in Loizos Chr. Kanaris v. Osman Tosoun,

(1969)1 C.L.R. 637. 15 Where, however, a statute is silent as to the civil rights of the parties but penalizes the making or performance of the contract, the Courts consider whether the Law, on its construction, is intended to avoid contracts of the class to which the particular contract belongs or whethei itmerelyprohibits the doingof some 20 paiticular act - (Archbolds(Freightage) Ltd. v. S. Spanglett Ltd., Randall (Third Party), [1961] 1 All E.R. 417). In Copev.Rowlands, 150E.R. 707,the question arose whether a broker who was not admitted by the Court of Mayor and Alderment of the City for the time being could recover for work 25 and labour and commission foi buying and selling stock. By the 6 Anne, c.16, s.4, it was enacted, "That all brokers who shall act as brokers within the city of London and liberties thereof shall, from time to time, be admitted so to do by the Court of Mayor and Aldermen of the said city for the time 30 being, under such restrictions and limitations for their honest and good behaviour asthat Court shallthink fit and reasonable; and shall, upon such their admission, pay to the Chamberlain of the said city for the time being, for the uses hereinaftei mentioned, the sum of 40s., and shall also yearly pay to the said uses 35 the sum of 40s. upon the 29th day of Septembei in every yeai". Parke, B., said at p. 710:"It is perfectly settled, that where the contract which the 451 Stylianides J. Glamor Development v. Christodoulou

(1984)plaintiff seeksto enforce, beit express or implied, isexpressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. Ir is equally clear that a contract is void if prohibited by a statute, though the statute inflicts a penalty only, because 5 such a penalty implies a prohibition. And it may be safely laid down, notwithstanding some dicta apparently to the contrary, that if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in view the protection of the revenue, 10 or any other object. The sole question is, whether the statute means to prohibit the contract?" And further down:"In order to decide this point, it is only necessary to look at the statute itself, if its object had been simply the 15 pecuniary advantage of the Mayor and Corporation, it would have been wholly unnecessary to have made any provision for securing the good conduct of the persons admitted. The more that should be allowed to practise, the larger the revenue of the city; but the enactment, that 20 all persons who should act as brokers should be admitted bytheCourt ofMayor and Aldermenundersuch restrictions and. limitations for their honest and good behaviour as the Court should think fit and reasonable, shewsclearly that the legislature had in view, as one object, the benefit and secu- 25 rity of the public in those important transactions which are negotiated by brokers. The clause, therefore, which imposes a penalty, must be taken to imply a prohibition of all unadmitted persons to act as brokers, and consequently to prohibit, by necessary inference, all contracts which such 30 persons make for compensation to themselves foi so acting; and this is the contract on which this action (so fai a; it relates to brokerage) is brought". In Liverpool Borough Bank v. Turner [1860] 30 L.J. Ch. 379, Lord CampbiII, L.C., saidinreference to statutory piohibitioni:- 35 "No univeisa! rule can be laid down for the constiuction of statutes, as to whothcr mandatoiy enactments shall be considered diicctory only oi obligatory with an implied nullification foi disobedience. It is the duty of couits of 452" 1 C.L.R. Glamor Development v. Cfarislodoulcu St)lianldes J. justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed". In that case, the Couit, by a careful examination of the object 5 of the Act and the public impoitance of compliance with it, held the transfer of a vessel to be a nullity for bieach cf a legistia'ion law. In Vita FoodProducts v. UnusShipping Co., [1939] 1All E.R. 513, Lord Wright said at p. 523:10 15 "Each case has to be consideied on its meiits. Noi must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a lule of public policy only, and public policy understood in a wider sense may at times be better served by tefusing to nullify a bargain save on serious and sufficient grounds". In St. John Shipping Corpn. v. Joseph Rank, Ltd., [1956] 3 All E.R. 683, Devlin, J., as he then was, said at p. 687:- 20 25 30 35 "There are two general principles. The first is that a contract which isentered into with the object of committing an illegal act is unenforceable. The application of this principle depends on proof of the intent, at the time the contract was made, to break the law; if the intent is mutual the contract isnot enforceable at all, and, if unilateral, it is unenforceable at the suit of the party who is proved to have it. This principle is not involved here. Whether or not the overloading was deliberate when it was done, there isnoproof that it wascontemplated when the contract of carriage was made. The second principle is that the court will not enforce a contract which is expiessly oi impliedly prohibited by statute. If the contiact is of this classit does not mattei what the intent of the paities is; if ihe statuteprohibits the contract,it isunenforceable whether the paities meant to break the law or not. A significant distinction between the two classes is this. In the foimer class one has only to look and see what acts the statute prohibits; it does not mattei whether oi not it prohibits a contiact; if a contract is deliberately made to do a prohibited act, that contract will be unenforceable. In the 453 Stylianides J. Glamor Development v. Christodoulou .

(1984)latter class, one has to consider not what acts the statute prohibits, but what contracts it prohibits; but one is not concerned at all with the intent of the parties; if the parties enter into a prohibited contract, that contract is unenforceable". 5 The fundamental question is whether the statute means to prohibit the contract. The statute is to be construed in the ordinary way. One must have regard to all relevant consideiations and no single consideration is conclusive. Where the law does not expressly deprive the plaintiff of his 10 civil remedies under the contractthe appropriate question to ask is whether, having regard to the Law and theevils against which it was intended to guard and the circumstances in which the contract was made and to be performed, it would in fact be against public policy to enforce it - (Shaw v. Groom, [1970] 1 15 All E.R. 702). "Public policy", in relation to this question, is that principle of the law which holds that nocitizen can lawfully do that which has a tendency to be injurious to thepublic, or against the public good, whiah may be termed,as it sometimes has been, the policy 20 of the law, oi public policy inrelation to theadministrationof the law - (Egerton v. Brownlow, [1843-60] All E.R. Rep. 970, per Lord Truro at p. 995). "Public policy" is an unruly horse, and dangerous to ride. No evidence is given in these pubhc pohcy cases. The Court is 25 to say, as matter of law, that the thing is against public policy, and void. The question whether a particular agioement is contrary to public policy is a question of law -(Mogul Steamship Co. v. McGregor, Gow & Co., [1892] A.C. 25, H.L., at p. 45). Judges are more to be trusted as interpieters of the law than as 30 expounders of what is called pubhc policy - (In Re Mirams, [1891] 1 K.B. 594) In Janson ν Driefontein Consolidated Mines Ltd., [1902] A.C. 484, at p. 491 Lord Halsbury, L.C., said:"I deny that any Court can invent a new head of public policy". 454 35 1 C.L.R. Glamor Development v. Christodoulou Stylianides J. L isdoubted whethei thisdictumisconsistent withthehistory of the law and with the trend of modern decisions. Holmes,J.,inSouthPacificCo.v. Jensen,

(1917)244U.S.205, at p. 221 said:5 "I recognise without hesitation that judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions". The fact that judges do make law has now been avowed by eminent writers. Sir Carleton Allen in "Law in theMaking", 10 p. 295, put the matter thus:"The creative power of the courts is limited by existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material". 15 Thisis approximately true, the only difficulty beingthe sense in which a judge may be said to use "existing legal material" when he decides a case purely out of a sense ofjustice. Pubhc pohcy is not to be identified with the pohcy of the government of the day. Public pohcy may change from gene20 ration to generation. The law relating to pubhc policy must change with the passage of time, it cannot lemain immutable. The doctiine of "pubhc pohcy" should be involved only in clear cases, in which the harm to the public is substantially incontestable and does not depend upon the idiosyncratic 25 inferences of a fewjudicial minds - (Fender v. Mildmay, [1937] 3 All E.R. 402). .In Halsbury's Lawsof England, 4th ed., vol9, paia. 392, the Law is stated thus:30 35 "392. Public policy. Any agreement which tends to be injurious to the public or against the public good is invalidated on the grounds of public policy. The question whether a paiticular agreementiscontrary to pubhcpohcy isa question of law,to bedetermined likeany other bythe proper application ofpriordecisions. Ithasbeenindicated that new heads of pubhcpolicy willnot beinvented by the courts for the following reasons:

(1)judgesare more to be trusted as interpreters of the law than as expoundeis of 455 Stylianides J. Glamor Development v. Christodoulou

(1984)public pohcy; and

(2)it is impoitant that the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable. Howcvei, the application of any particular ground of pubhc policy may well vaiy from time to time and the courts will not shrink 5 from properly applying the principle of an existing ground to any new case that may arise. Conversely, many transactions are now upheld that in former times would have been considered against the policy of the law. The rule remains, but its application varies with the principles which 10 for the time being guide public opinion, in fact, the adaptability of the rules of public policy derives in large part from the genciality, and even ambiguity, with which those rules are cxpiessed. Public policy in this context must be distinguished from the policy of a particular government." 15 Thetask ofthe Court istoconsider and interpret the particular statutory provision within the context of the law as a whole, the policy that it expresses, the evil that it intends to remedy, and reach a conclusion whether the Law intends to prohibit the 20 contract. The second question is: If the agreement of the parties isenforced by the Court, would this defeat the provisions of s. 64 of Law 33/67? And the third question: Is the object of the agreement in this action opposed to public policy as expounded above? If the answer to one or more of the above 25 questions is in the affirmative, then the consideration and/oi object is unlawful and the agicement itself is void. It was strenuously argued by counsel for the respondent that Law 33/67 is designed to regulate the terms and conditions of employment of public servants, establish a code for their be- 30 haviour and regulate matters pertaining to their status but leaves unaffected their contractual rights, and the contract in question is not unlawful on any of the grounds set out above. With respect, the pubhc service isa most important factor for the efficient functioning of the State. The interest of the citizens 35 in a modern State,the activities of which areexpanding, are best served by qualified, experienced, efficient and devoted public servants. Section 64 is not concerned solely with the regulation of con456 1 C.L.R. Glamor Development v. Christodoulou Stylianides J. ditions of employment in the public service. It prohibits public servants from engaging inany other work or business without the prior permission of the Minister of Finance. Such permission is only to be granted in exceptional cases. This provision is 5 essential foi the efficient administration of the public service and the successful performance of itsmission. If they are free at the risk only of a small or any punishment for disciplinary offence to engage themselves in what the Law prohibits, naturally and inevitably their devotion to duty would diminish and thur 10 quality as civil servants would deteriorate at the expense of the public good. This would involve them in disputes with individuals to the disiepute of the service. The confidence of the public in .the public service would be undermined. As it emerges from the four corners of the Law and the pio15 visions of s.64, the policy of the Law is to make the contract of service between a public servant and a third paity unlawful, illegal and void. The Law prohibits the consideration of the agreement on which the respondent based his claim. To hold otherwise would be tantamount to go against the tide of public 20 feeling in the country. This contiact is illegal as it infringes the provisions of s.64 of the Public Service Law, No. 33/67. It is illegal because it is forbidden by Law; it is illegal because, if permitted, it would defeat the provisions of the same Law; and it is illegal as 25 opposed, to pubUc policy. Consequently, under the provisions of s. 23of our Contract Law, Cap. 149,the consideration of the agreement of the litigants isunlawful. In view of the provisions of s. 10

(1)and s.23 of our Contract Law, the agreement is void as the consideration is unlawful. 30 The pohcy of the Law for void agreements is rather punitive in nature. It is based on the ex tuipi causa doctrine. The system of our Law adheres to the rule which denies a right of action when the parties are in pari delicto. An illegal contract is "void" but this term when applied to illegal contracts differs 35 from the meaning propounded in our system of law to the same term whenit appealsin other context. A void contract isa nonexistent contract and cannot, therefore, confer rights or create obligations. Whenthe contract isvoid for illegality, recovery is precluded on the ground of ex turpi cause non oritur actio. 457 Stylianides J. Glamor Development v. Christodoulou

(1984)Some writers expressed the view that illegality meiely rendeis a contract unenforceable, not totally void -(/?. M. Goode - CommercialLaw,

(1982)p. 133). Be that as it may, the Courts do not assist the person who relies on an illegal contract and they refuse to enforce it. The 5 party who seeks redressin Courts relying on an illegal contract andunlawful consideration,ispunishedbythedenialofalemedy onthegiound ofillegality. (Holman v. Johnson

(1775)1 Cowp., p. 343; Scott v.Brown, Doering, McNab&Co.[1892]2Q.B., p. 728; North-Western SaltCo.Ltd. v.Electrolytic Alcalic Co. 10 Ltd. [1914]A.C. 461; Snellv. Unity Finance Ltd. [1963] 3All E.R., p. 50). The fact that the lesult is harsh if, however, net in itself a decisivefactor. Inall casesof illegality, the Court is concerned not only with the normal process of finding a satisfactory adjustment of rights between the paities, but with 15 promoting the pubhc inteiest. If these two objectives conflict, thelattei isgenerallyregardedasthepredominant one(Contiact and Crimeby G. H. Treitel,in Crime,Proof & Punishment, 1981, p. 97). This function of the contract rules can give rise to two pro- 20 blems; Whether this deterrence is effective and whether it is excessive. In New Zealand the Illegal Contracts Act, 1970,s.7, givestheCourta broaddiscretiontograntreliefinthecaseofan illegal contract by way of restitution, compensation, variation and even validation of the contiact. For a critical discussion, 25 see Furmston, "The Illegal Contracts Act 1970 - An English View",

(1972)5 N.Z. Univ. L. Rev. 151; the Israeli Contract Law (General Part) 1973, s.

1. Itisuponthelegislaturetoconsideranynecessaryamendments to our Contract Law. We would venture, howevei, to suggest 30 that in the case of illegality for violation of s.64 of the Pubhc Service Law the remuneration, which would have been payable to any pubhc servant but for the illegality, be payable to the Republic, and the Minister of Finance to have a discietion whethei anypait thereof wouldbepayabletothepublicservant. 35 The claim of the respondent might have been defeated if a furthei statutory illegality waspleaded, i.e.the provisionsofthe Architects & Civil Engineers Law, No. 41/
2. Illegality, 458 1 C.L.R. Glamor Development ?. Christodoulou Stylianides J. however, hasto bepleaded, and since thispoint wasnot laised, we need not deal with the mattei. In view of the above the appeal succeeds. Thejudgment of theCourt issetaside butinallthecircumstancesofthecase,as 5 theappellants havebenefited bythe illegality of which they had knowledge,wemakenoorderastocostseitherbeforethisCouit or in the Court below. Appeal allowed. Orderfor costs as above. 459