Equity’s Leaded Feet in a Contest of Scoundrels: The Assertion of the In Pari Delicto Defense Against a Lawbreaking Plaintiff and Innocent Successors

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“While a court of equity will on swift wings fly to relieve the innocent from wrong or injury, it travels with leaded feet and turns a deaf ear, when called on to furnish a cloak of righteousness to cover sin . . . .”

“We do not . . . lend our aid to the furtherance of an unlawful project, nor do we decide, as between two scoundrels, who cheated whom the more.”

It is a broad and well-established principle of common law that a court will not entertain a claim by a wrongdoer arising out of the claimant’s own illegal conduct. This principle is applicable in any case in which a person seeking a legal or equitable remedy violated the law in the transaction or situation from which the claim arises. The principle is expressed in two well-worn maxims: ex dolo malo non oritur actio—no action arises out of one’s own fraud or wrongdoing—and ex turpi causa non oritur actio—no action arises out of an immoral act. It is also reflected in the wrongful conduct rule of tort law and emerges in the equitable unclean hands doctrine. (For the sake of brevity, this general principle is referred to in the rest of this article as the “ex turpi causa principle.”) In its absolute, unqualified form, the ex turpi causa principle calls on a court to turn its back on a guilty claimant and refuse to countenance the claim at all.

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