There are different types of illegal contracts, all of which are void and unenforceable. Contracts can be deemed illegal if the conduct being performed by either party violates the law or is an otherwise discouraging activity that others would deem offensive or wrong. If using illegality as a defense in a contractual dispute, the party must prove that the illegality relates directly to the contract itself or the steps taken when entering into the contract.

Since an illegal contract isn’t actually a contract, the court will not award either party with monetary relief in most circumstances. Therefore, if the plaintiff brings a breach of contract claim against a defendant, but the defendant argues that the contract is illegal, then any determination by the court that it is, in fact, illegal will not allow the plaintiff to recover for breach; the contract itself is void and essentially thrown out.

Nature and Contractual Obligation

While not all courts will deem a contract illegal, they will always look to the unique circumstances of each contract to determine whether or not the performance under the contract is wrong or illegal. The court will also look at the steps taken when entering into the contract to ensure that no illegal actions were taken by either party during the negotiation phase. For example, if the one party threatens the other party into signing the agreement, then the court will find the contract unenforceable.

While courts will support such contractual disputes, and ensure that a proper remedy is given to the disadvantaged party, courts also want to allow parties to freely enter into contracts, as every single business transaction requires one. Courts want the parties to work out their issues during the negotiation phase, and not have to intervene in a contractual dispute unless it is being brought due to illegality, impossibility, duress, or coercion.

Elements of a Valid Contract

A valid contract is one that includes several elements as follows:

  1. Offer
  2. Acceptance
  3. Consideration
  4. Mental Capacity
  5. Consent
  6. Legal Subject Matter
  7. Mutual Assent

The contract must include an offer from one party to the other. The party making the offer is known as the offeror and the party receiving the offer is the offeree. The party making the offer is essentially promising that if the offeree accepts the offer, the offeror will enter into the contract.

Thereafter, the other party must accept the offer. Once the offeree accepts the offer, the offeror can no longer withdraw the offer. The acceptance can’t introduce any new terms to the offer. If it does, then this will be considered a counter-offer rather than an acceptance. Keep in mind that acceptance only constitutes as such if the offeror knows that the offer is made. For example, if a person accepts what he thinks is an offer, but the offeror indicates that she wasn’t offering anything, then a contract cannot be established.

Next, the parties will need to have consideration. This is rather easy as a promise to do something can constitute consideration. For example, if John promises to sell Sue his car in exchange for $200, the promise by both parties constitutes consideration. However, if no consideration is present, then a court will deem the contract void as if it never existed.

Both parties entering into the contract must have the mental capacity to enter into the agreement. This means that the parties must both be at least 18 years of age and be mentally competent.

Next, both parties must consent to having entered into the agreement, while indicating that they were not forced or threatened into entering into the contract.

The subject matter of the contract itself must be legal. For example, if it involves illegal gambling, then the contract will be deemed illegal and unenforceable. Another example would be if one party asks another party to engage in fraudulent or some other wrongful activity.

Lastly, the parties must mutually assent to performing under the contract. This element is similar to that of consent, as the parties cannot be coerced into entering into the agreement.

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