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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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Δεν έχει εντοπιστεί νομοθεσία ή απόφαση ή δικονομικός θεσμός στον οποίο να κάνει αναφορά η απόφαση αυτή
Μεταγενέστερη νομολογία η οποία κάνει αναφορά στην απόφαση αυτή:
Δεν έχει εντοπιστεί απόφαση η οποία να κάνει αναφορά στην απόφαση αυτή
(V7) 1 CLR 67
1907 July 18
[TYSER, C.J. AND BERTRAM, J.]
PANAYI KALAVA,
Plaintiff,
v.
GEORGIOS BASSILIOU AND G. CH. IOANNIDES,
Defendants.
ACKNOWLEDGMENT GIVEN IN PURSUANCE OF A CONSPIRACY TO BREAK THE LAW-EX TURPI CAUSA NON ORITUR ACTIO-MEJELLE, ART. 1610.
The Courts will not enforce an acknowledgment of debt (deyn senned) given in pursuance of a conspiracy to break the law.
Appeal from the District Court of Kyrenia.
The action was brought by the Plaintiff upon a document signed by the Defendant, acknowledging an obligation to pay the sum of £500 with interest.
The substantial defence raised at the issues was that the document was void, as having been given for an unlawful purpose. "It was given for "the transport and sale of antiquities, which have been got by unlawful "excavation, and the exportation of such antiquities is prohibited."
The Defendant Ioannides being abroad and not having been served, the Court directed the action to proceed against the Defendant Bassiliou separately.
It appeared from the evidence that the document was given as a result of an arrangement between the Plaintiff his brother, the Defendant Bassiliou, a man called Nicola Kalavas and others with reference to certain antiquities which as the result of certain unauthorised excavations had been discovered in the neighbourhood of the monastery of Acheropito. The articles in question were enumerated by the Defendant as follows:-
(1) A crown with 40 golden leaves.
(2) Two golden bracelets in shape of serpents.
(3) Two golden anklets.
(4) One ear-ring.
(5) One fillet (ταινία) with two golden chains at the end.
The arrangement was that the Defendant Bassiliou was to receive the antiquities, export them secretly, and realise them abroad. He was to receive one-third of the price, and was to account for the remainder, the document being taken as a security for this purpose. As a matter of fact the articles never reached the Defendant but were exported and realised through another channel.
The Plaintiff wholly denied the version of the transaction and swore that the document was given in the ordinary course of business.
The Court found that the document was given in pursuance of a conspiracy to commit offences against the Antiquities Law, 1905, and dismissed the action without costs.
The Plaintiff appealed.
Theodotou for the Appellant.
Even assuming that the finding of the Court below is correct it furnishes no answer to the Plaintiff's case. The maxim ex turpi causa non oritur actio is unknown to the Turkish law.
At any rate the Defendant cannot himself raise the plea. Nemo allegans turpitudinem suam est audiendus.
The Defendant is bound by his own acknowledgment. Mejelle, Art. 1610.
Pascal Constantinides, for the Respondent, was not called upon.
Judgment: CHIEF JUSTICE: The answer to Mr. Theodotou's argument is that as an agreement this document never had any real existence. It was void ab initio. The principles governing this question were settled in England long ago by the judgment of Lord Chief Justice Wilmot in Collins v. Blantern (1767) 1. S.L.C., 398. "We are all of opinion that the bond is void ab initio, by the common law, by the civil law, moral law, and all laws whatever. This is a contract to tempt a man to transgress the law, to do that which is void by the common law, and the reason why the common law says such contracts are void is for the public good. You shall not stipulate for iniquity. All writers upon our law agree in this, no polluted hand shall touch the pure fountain of justice. Whoever is a party to an unlawful contract, if he shall once have paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again. You shall not have a right of action when you come into a Court of Justice in this unclean manner to recover it back. Procul, O procul este profani."
We are clearly of opinion that the principles here enunciated are part of the law of the country.
The appeal is dismissed with costs.
BERTRAM, J., concurred.
Appeal dismissed.