Honor Among Thieves: Enforcing Criminal Contracts
31 Pages Posted: 8 Nov 2022
Date Written: November 3, 2022
Contracts involving promises to commit criminal acts are ordinarily unenforceable. Yet nonenforcement does not fully deter incentives to form criminal agreements. This Article demonstrates that partial enforcement can generate greater deterrence incentives by disrupting the trust relationship between parties to a criminal agreement, effecting superior deterrence. Specifically, by allowing promisors and denying promisees the right to sue, the law can effect a no-lose proposition for the former, and a no-win proposition for the latter. Since mutual assent requires mutuality, and fewer promisees will assent under asymmetric enforcement, partial enforcement achieves better deterrence than total nonenforcement.
Keywords: illegal contract, criminal contract, conspiracy, nullity
JEL Classification: C71, K12, K14, K42
Suggested Citation: Suggested Citation