Man sues IVF clinic for giving his sperm to gay couples.

by Syl Sat Oct 03, 2020 12:44 pm

First topic message reminder :

"A man sued a Manchester fertility clinic after he said more than nine children were ‘mistakenly conceived’ when his sperm was given to gay couples and single mums against his wishes.

Neil Gaskell, 49, sued CARE Fertility, which is based in Longsight, after he says he was allowed to stipulate that his sperm donation was not to be ‘used by same-sex couples’.

He says he was ‘shocked’ to discover his sperm had been used in nine births involving same-sex couples or single mums and another four to heterosexual couples. In total, he had 13 children he never knew about.

Speaking to the Sunday Mirror, Mr Gaskell insisted he didn’t believe his demands were ‘discriminatory’ but accepted that his traditional views that children should only be brought up by a mother and father were ‘divisive’.

“It’s not about discrimination, it’s not about bigotry,” he told the publication, who reported that he received a five figure settlement after a lengthy legal battle.

“I accept some people will find it uncomfortable but I wanted any children born from my sperm to have a mother and a father," he said."

https://www.manchestereveningnews.co.uk/news/greater-manchester-news/man-sues-longsight-ivf-clinic-19034711?utm_source=men_newsletter&utm_medium=email&utm_content=EM_MENNews_Nletter_DailyNews_News_smallteaser_Image_Story&utm_campaign=daily_newsletter

by Original Quill Tue Oct 06, 2020 4:28 pm

Tommy Monk wrote:Quill is like the Black Knight with his arguments...

https://m.youtube.com/watch?v=RG1P8MQS1cU

Lol...it's not about me, tommy. It's not my argument, I'm just the messenger. It's the message of common law of contracts. See, Arthur Corbin and Joseph M Perillo, Corbin on Contracts (1950); see also, Restatement (Second) of Contracts, § 642, (4) Impossibility or Impracticability of Performance.

I'd be just as pissed as you if the legislature passed a law protecting southerners. Lol... I want a chance at discrimination, too. But it's a collateral matter; the legislature has made it illegal; so, it gets severed.

If it makes you feel any better, the case was settled. Perhaps the clinic feared that a Manchester jury pool would have as many homophobes as we have here. I would bet that this was as much an incentive to settle as the cost of litigation.

by Tommy Monk Tue Oct 06, 2020 4:41 pm

If he donated his sperm to help married heterosexual couples have children, and it was his belief that children of his sperm should only be part of a normal heterosexual couple parenting structure, with a mother and a father, and this was agreed in his contract with the sperm donation company, then they were legally obliged to honour the specified agreements in this contract.

Any changes should have been subject to agreement by both party's before any action was taken that deviated from the stipulations that had already been agreed.

The donation company were wrong to use his sperm in a way that was not agreed, and without first seeking agreement to these changes in appropriation of his sperm.

by Maddog Tue Oct 06, 2020 4:44 pm

Original Quill wrote:
Tommy Monk wrote:Quill is like the Black Knight with his arguments...

https://m.youtube.com/watch?v=RG1P8MQS1cU

Lol...it's not about me, tommy. It's not my argument, I'm just the messenger. It's the message of common law of contracts. See, Arthur Corbin and Joseph M Perillo, Corbin on Contracts (1950); see also, Restatement (Second) of Contracts, § 642, (4) Impossibility or Impracticability of Performance.

I'd be just as pissed as you if the legislature passed a law protecting southerners. Lol... I want a chance at discrimination, too. But it's a collateral matter; the legislature has made it illegal; so, it gets severed.

If it makes you feel any better, the case was settled. Perhaps the clinic feared that a Manchester jury pool would have as many homophobes as we have here. I would bet that this was as much an incentive to settle as the cost of litigation.

You're posts are about you. You have made your proverbial bed.

by Original Quill Tue Oct 06, 2020 5:15 pm

Maddog wrote:
Original Quill wrote:

Lol...it's not about me, tommy. It's not my argument, I'm just the messenger. It's the message of common law of contracts. See, Arthur Corbin and Joseph M Perillo, Corbin on Contracts (1950); see also, Restatement (Second) of Contracts, § 642, (4) Impossibility or Impracticability of Performance.

I'd be just as pissed as you if the legislature passed a law protecting southerners. Lol... I want a chance at discrimination, too. But it's a collateral matter; the legislature has made it illegal; so, it gets severed.

If it makes you feel any better, the case was settled. Perhaps the clinic feared that a Manchester jury pool would have as many homophobes as we have here. I would bet that this was as much an incentive to settle as the cost of litigation.

You're posts are about you. You have made your proverbial bed.

Classic attack the messenger...never mind the message. No wonder your marriage fell apart. That's a problem with all southerners, Red. That's why they love their guns and their violence. They have no patience with reason...it's all fight, fight, fight.

It's nice to be spirited, but not when you're morally wrong. When you have a society built on slavery and injustice, you become the classic outlaw and end up in prison, or worse. It's no life.

by Vintage Tue Oct 06, 2020 5:23 pm

It sounds to me that if any contract made with specific agreements included that can no longer be fulfilled by one side yet who continues to provide the service against a specific condition makes drawing up any contract worthless.

by Syl Tue Oct 06, 2020 7:19 pm

Tommy Monk wrote:

If he donated his sperm to help married heterosexual couples have children, and it was his belief that children of his sperm should only be part of a normal heterosexual couple parenting structure, with a mother and a father, and this was agreed in his contract with the sperm donation company, then they were legally obliged to honour the specified agreements in this contract.

Any changes should have been subject to agreement by both party's before any action was taken that deviated from the stipulations that had already been agreed.

The donation company were wrong to use his sperm in a way that was not agreed, and without first seeking agreement to these changes in appropriation of his sperm.

Yep...that is exactly the way I saw it from the start.
It's just common sense really, and the law is based (mostly) on just that.

by Syl Tue Oct 06, 2020 7:20 pm

And Tommy....I would imagine if you had ever donated you would have tried to have the same stipulations in your contract too. Razz

by Original Quill Tue Oct 06, 2020 7:54 pm

Vintage wrote:It sounds to me that if any contract made with specific agreements included that can no longer be fulfilled by one side yet who continues to provide the service against a specific condition makes drawing up any contract worthless.

So is evaporating the entire contract. If one can breach a contract whenever s/he wants, there will be no contracts.

Imagine you finance a vehicle purchase through the bank. A condition of the finance contract is that you keep the vehicle clean by taking it to the carwash weekly. One week, you miss the carwash. The bank repossesses the vehicle.

If failure to meet any condition is the rule, the bank wins.

by Maddog Tue Oct 06, 2020 8:18 pm

Original Quill wrote:
Maddog wrote:

You're posts are about you. You have made your proverbial bed.

Classic attack the messenger...never mind the message. No wonder your marriage fell apart. That's a problem with all southerners, Red. That's why they love their guns and their violence. They have no patience with reason...it's all fight, fight, fight.

It's nice to be spirited, but not when you're morally wrong. When you have a society built on slavery and injustice, you become the classic outlaw and end up in prison, or worse. It's no life.

It's not about me or where I live hur dur. Rolling Eyes

by Maddog Tue Oct 06, 2020 8:22 pm

Original Quill wrote:
Vintage wrote:It sounds to me that if any contract made with specific agreements included that can no longer be fulfilled by one side yet who continues to provide the service against a specific condition makes drawing up any contract worthless.

So is evaporating the entire contract. If one can breach a contract whenever s/he wants, there will be no contracts.

Imagine you finance a vehicle purchase through the bank. A condition of the finance contract is that you keep the vehicle clean by taking it to the carwash weekly. One week, you miss the carwash. The bank repossesses the vehicle.

If failure to meet any condition is the rule, the bank wins.

That's not even close to this example. This was a donation contingent upon pre agreed to limitations.

Try again counselor.

by Tommy Monk Tue Oct 06, 2020 11:45 pm

Syl wrote:And Tommy....I would imagine if you had ever donated you would have tried to have the same stipulations in your contract too.

And why should that choice be denied to me and all the others who may want these assurances about how their donations might be used?

Surely there are plenty of other donors who are happy for their donations to be used in the ways said in the OP that would be enough to meet that demand?

Isn't it the case that these sperm donation clinics were only ever created for the purpose of trying to help infertile heterosexual couples to have children of their own?

And isn't it right that if these clinics were subsequently given the permission to use donations for non heterosexual couples, then it should still be a choice for donors to agree/disagree to their donations to be used in these ways?

by Syl Wed Oct 07, 2020 12:47 am

I think the sole aim for fertility clinics is to enable women who cant concieve naturally the opportunity to become pregnant.

Sperm donors shouldn't be allowed to dictate who gets their donations.....once given they should have no rights as to where their sperm goes.

by Syl Wed Oct 07, 2020 12:53 am

"The Equality Act 2010 says you must not be discriminated against because:

you are heterosexual, gay, lesbian or bisexual."

https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-orientation-discrimination

by Original Quill Wed Oct 07, 2020 3:26 am

Maddog wrote:
Original Quill wrote:

So is evaporating the entire contract. If one can breach a contract whenever s/he wants, there will be no contracts.

Imagine you finance a vehicle purchase through the bank. A condition of the finance contract is that you keep the vehicle clean by taking it to the carwash weekly. One week, you miss the carwash. The bank repossesses the vehicle.

If failure to meet any condition is the rule, the bank wins.

That's not even close to this example. This was a donation contingent upon pre agreed to limitations.

So, the auto loan was contingent upon a previously agreed, weekly carwash. Do you have a problem with logic?

by Maddog Wed Oct 07, 2020 4:04 pm

Original Quill wrote:
Maddog wrote:

That's not even close to this example. This was a donation contingent upon pre agreed to limitations.

So, the auto loan was contingent upon a previously agreed, weekly carwash. Do you have a problem with logic?

How many payments were made in the sperm donor scenario?

Had the donor said I will repossess my sperm if you don't use it in the manner I chose, that would have been fine as the clinic was not making payments to him.

Cash changes the dynamics of the contract counselor.

by Maddog Wed Oct 07, 2020 4:06 pm

Syl wrote:"The Equality Act 2010 says you must not be discriminated against because:

you are heterosexual, gay, lesbian or bisexual."

https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-orientation-discrimination

Could someone make a donation to a school saying the funds can only be used for say girls soccer kits?

by Original Quill Wed Oct 07, 2020 5:28 pm

Maddog wrote:
Original Quill wrote:

So, the auto loan was contingent upon a previously agreed, weekly carwash. Do you have a problem with logic?

How many payments were made in the sperm donor scenario?

Had the donor said I will repossess my sperm if you don't use it in the manner I chose, that would have been fine as the clinic was not making payments to him.

Cash changes the dynamics of the contract counselor.

Who said anything about cash? You are bringing up consideration: something of value (either a promise, an act or an object) that a promisor receives from a promisee in return for his promise. It may, or may not involve cash.

A contract in its most basic definition is nothing more than a legally enforceable promise. A contract where the parties exchange a promise for a promise is known as a Bilateral Contract. At issue here is a bilateral contract.

The formation of a legally binding contract requires two basic elements, consideration and mutual assent. Essentially, consideration is simply what you give up in the deal for what you get out of the deal. The idea of consideration is vital to contract law because, in order for a contract to be enforceable, there must be “mutuality of obligation.”

Neither of us have seen the specific contract in question. But it appears to be a promise to receive, store and distribute sperm, in return for the promise to donate the sperm. No cash transfer is at issue. Nor do I see anything that gives the donor a right to repossession…which in America requires a legal justification or a court order.

This appears to be an action for damages and injunctive relief (stop further distribution) only. Monetary damages are not typical in contract cases, and generally only fall into two categories: (1) compensatory damages; and (2) consequential damages (which covers any loss incurred by the breach of contract because of special circumstances or conditions that are not ordinarily predictable). Since bodily fluids generally have no value, I would guess the settlement involved consequential damages. But in a settlement, you don’t have to prove damages. So, who knows?

by Syl Wed Oct 07, 2020 5:43 pm

Maddog wrote:
Syl wrote:"The Equality Act 2010 says you must not be discriminated against because:

you are heterosexual, gay, lesbian or bisexual."

https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-orientation-discrimination

Could someone make a donation to a school saying the funds can only be used for say girls soccer kits?

You mean a mixed school?
I imagine they could if they supported the girls football team and wanted to donate to that.

by Tommy Monk Wed Oct 07, 2020 6:41 pm

Isn't that discriminating against boys football teams?

If I wanted to donate money to the heart Foundation charity... Am I discriminating against homeless charity and cancer charity etc?

So why is it that If I wanted to donate sperm to help heterosexual couples have children, why is it that I'm automatically classed as discriminating against anyone else?

by Tommy Monk Wed Oct 07, 2020 6:44 pm

Surely it is up to me who I choose to help or donate to...?

by eddie Wed Oct 07, 2020 6:53 pm

Just want to wade in with my tuppence worth.
I don’t think sperm donors should be allowed to say where their sperm goes. It’s a donation after all and shouldn’t be subject to what and where and why.

Why would anyone care where it goes or whom it goes to? It’s a gift!

by Tommy Monk Wed Oct 07, 2020 7:18 pm

What if the sperm clinic used this donation by giving it to a bio genetics research company who were wanting to carry out a legalised form of research and testing on embryos created from this sperm...?

by eddie Wed Oct 07, 2020 7:29 pm

Tommy Monk wrote:

What if the sperm clinic used this donation by giving it to a bio genetics research company who were wanting to carry out a legalised form of research and testing on embryos created from this sperm...?

And? Once you donate something it is no longer yours. If you are worried about it going somewhere you not keen on then don’t donate.
And who really knows where it all really goes, anyway? Rolling Eyes

by Maddog Wed Oct 07, 2020 7:33 pm

Syl wrote:
Maddog wrote:

Could someone make a donation to a school saying the funds can only be used for say girls soccer kits?

You mean a mixed school?
I imagine they could if they supported the girls football team and wanted to donate to that.

Yeah.

Let's be honest. We all have people we deem needing of help and thise we don't.

Politics being another good example.

by Maddog Wed Oct 07, 2020 7:37 pm

Here's another example. People here make donations to the Cancer Society. Not saying the Heart association isn't a worthy cause, but people who donate to cancer cures should be able to expect that their donations are used to on cancer and not heart disease.

Heck, they can make sure it's used for breast cancer and not testicular cancer.

by Original Quill Wed Oct 07, 2020 7:38 pm

Tommy Monk wrote:Surely it is up to me who I choose to help or donate to...?

I agree, tommy. It seems the clinic in this case, not the donor, was covered by the cloak of law. I don’t know about the UK, but in the US the discrimination laws are applied to businesses and entities such as clinics, by way of the Commerce clause, Article I, Section 8, Clause 3, of the US Constitution…the power to regulate commerce.

If the UK is like the US, it wasn’t the guy who donated the sperm whose acts were unlawful, but the lawful inability of the clinic to distribute the sperm according to the condition that it not go to same-sex couples. After the Equality Act of 2010, the clinic could no longer lawfully meet the condition.

As a donor, one is still free to give to anyone. The question is, can the recipients (ie, the clinic) allow ‘pass through’ gifts made with discriminatory conditions?

by Syl Wed Oct 07, 2020 7:39 pm

Maddog wrote:
Syl wrote:

You mean a mixed school?
I imagine they could if they supported the girls football team and wanted to donate to that.

Yeah.

Let's be honest. We all have people we deem needing of help and thise we don't.

Politics being another good example.

Is it really discriminating against the boys football team if you want to donate money to help buy the girls football team? Maybe your daughter plays on the team....if your son plays on a team it's natural to want to help them out.

It's more preference than discrimination....sometimes common sense has to come into play.

by Syl Wed Oct 07, 2020 7:41 pm

eddie wrote:
Tommy Monk wrote:

What if the sperm clinic used this donation by giving it to a bio genetics research company who were wanting to carry out a legalised form of research and testing on embryos created from this sperm...?

And? Once you donate something it is no longer yours. If you are worried about it going somewhere you not keen on then don’t donate.
And who really knows where it all really goes, anyway?

Exactly, when you donate organs you cant stipulate where they go, possibly they end up being dissected by med students in a lab rather than in a living body....so what?

by eddie Wed Oct 07, 2020 7:43 pm

Syl wrote:
eddie wrote:
Tommy Monk wrote:

What if the sperm clinic used this donation by giving it to a bio genetics research company who were wanting to carry out a legalised form of research and testing on embryos created from this sperm...?

And? Once you donate something it is no longer yours. If you are worried about it going somewhere you not keen on then don’t donate.
And who really knows where it all really goes, anyway?

Exactly, when you donate organs you cant stipulate where they go, possibly they end up being dissected by med students rather than in a living body....so what?

Exactly. Once you give it away, it isn’t yours to decide where it goes.

I have a picture of frog spawn in my brain now. Neutral

by Ben Reilly Wed Oct 07, 2020 7:48 pm

Have to say, I agree with those who say that after the law changed, the clinic should have made sure he still wanted his sperm to be given away.

by Syl Wed Oct 07, 2020 7:54 pm

I didn't know in the UK it was illegal to pay for sperm donations....we live and learn.

by Maddog Wed Oct 07, 2020 7:54 pm

eddie wrote:
Syl wrote:

Exactly, when you donate organs you cant stipulate where they go, possibly they end up being dissected by med students rather than in a living body....so what?

Exactly. Once you give it away, it isn’t yours to decide where it goes.

I have a picture of frog spawn in my brain now.

That's what contracts are for. I give you this, and you can use it for that. If we both agree, then we are both bound by our contractual obligation.

by Maddog Wed Oct 07, 2020 7:55 pm

Syl wrote:I didn't know in the UK it was illegal to pay for sperm donations....we live and learn.

Who runs your clinics? Is it part of the NHS?

by Syl Wed Oct 07, 2020 8:06 pm

Maddog wrote:
Syl wrote:I didn't know in the UK it was illegal to pay for sperm donations....we live and learn.

Who runs your clinics? Is it part of the NHS?

Some are NHS run some are private. There will be a long waiting list for NHS fertility treatment with limited treatments.

by Original Quill Wed Oct 07, 2020 8:25 pm

Syl wrote:
Maddog wrote:

Who runs your clinics? Is it part of the NHS?
Some are NHS run some are private. There will be a long waiting list for NHS fertility treatment with limited treatments.

CARE appears to be private:

Care Fertility Group Ltd,
John Webster House,
Nottingham Business Park,
Nottingham, NG8 6PZ.
https://www.carefertility.com/
https://www.carefertility.com/our-clinics/fertility-clinic-manchester/

You also have the right to lodge a complaint with the Supervisory Authority and for the UK this is the Information Commissioner’s Office (ICO). The ICO’s contact details are:

Information Commissioner’s Office,
Wycliffe House,
Water Lane, Wilmslow,
Cheshire, SK9 5AF,
Tel: 0303 123 1113.

by Syl Thu Oct 08, 2020 12:03 am

[size=51]Eligibility for fertility treatment on the NHS[/size]

Fertility treatment funded by the NHS varies across the UK. Waiting lists for treatment can be very long in some areas.
The eligibility criteria can also vary. A GP will be able to advise about your eligibility for treatment, or you can contact your local clinical commissioning group (CCG).
If the GP refers you to a specialist for further tests, the NHS will pay for this. All patients have the right to be referred to an NHS clinic for the initial investigation.

by Maddog Thu Oct 08, 2020 12:23 am

Syl wrote:
[size=51]Eligibility for fertility treatment on the NHS[/size]

Fertility treatment funded by the NHS varies across the UK. Waiting lists for treatment can be very long in some areas.
The eligibility criteria can also vary. A GP will be able to advise about your eligibility for treatment, or you can contact your local clinical commissioning group (CCG).
If the GP refers you to a specialist for further tests, the NHS will pay for this. All patients have the right to be referred to an NHS clinic for the initial investigation.

Well, at least it's free. Cool

by inmyopinion Sun Oct 11, 2020 4:00 pm

Syl wrote:

"A man sued a Manchester fertility clinic after he said more than nine children were ‘mistakenly conceived’ when his sperm was given to gay couples and single mums against his wishes.

Neil Gaskell, 49, sued CARE Fertility, which is based in Longsight, after he says he was allowed to stipulate that his sperm donation was not to be ‘used by same-sex couples’.

He says he was ‘shocked’ to discover his sperm had been used in nine births involving same-sex couples or single mums and another four to heterosexual couples. In total, he had 13 children he never knew about.

Speaking to the Sunday Mirror, Mr Gaskell insisted he didn’t believe his demands were ‘discriminatory’ but accepted that his traditional views that children should only be brought up by a mother and father were ‘divisive’.

“It’s not about discrimination, it’s not about bigotry,” he told the publication, who reported that he received a five figure settlement after a lengthy legal battle.

“I accept some people will find it uncomfortable but I wanted any children born from my sperm to have a mother and a father," he said."

https://www.manchestereveningnews.co.uk/news/greater-manchester-news/man-sues-longsight-ivf-clinic-19034711?utm_source=men_newsletter&utm_medium=email&utm_content=EM_MENNews_Nletter_DailyNews_News_smallteaser_Image_Story&utm_campaign=daily_newsletter

no one saw that coming.lol

by Victorismyhero Sun Oct 11, 2020 5:11 pm

standard microsoft contract to use their soft ware (by way of example) states clearly that if any clause is deemed inoperable for any reason then it is to be deemed severable and does not effect the whole.

this inclines me to think that if a contract does NOT include that clause about severability then if one condition fails the whole contract fails.

by Tommy Monk Sun Oct 11, 2020 8:55 pm

Syl wrote:
eddie wrote:

And? Once you donate something it is no longer yours. If you are worried about it going somewhere you not keen on then don’t donate.
And who really knows where it all really goes, anyway?

Exactly, when you donate organs you cant stipulate where they go, possibly they end up being dissected by med students in a lab rather than in a living body....so what?

That's different cos a doner has agreed for their organs to be used for both purposes... transplant as well as medical research.

by Original Quill Mon Oct 12, 2020 3:17 am

Victorismyhero wrote:standard microsoft contract to use their soft ware (by way of example) states clearly that if any clause is deemed inoperable for any reason then it is to be deemed severable and does not effect the whole.

this inclines me to think that if a contract does NOT include that clause about severability then if one condition fails the whole contract fails.

You would be wrong. In Anglo/American common law of contracts, the holding is the same as the clause: if the contract can go forward without the condition, the clause is severable. The clause is put in there as reinforcement, not as an alternative.

by Victorismyhero Mon Oct 12, 2020 10:30 am

reference pls quill

by Syl Mon Oct 12, 2020 12:57 pm

Tommy Monk wrote:
Syl wrote:

Exactly, when you donate organs you cant stipulate where they go, possibly they end up being dissected by med students in a lab rather than in a living body....so what?

That's different cos a doner has agreed for their organs to be used for both purposes... transplant as well as medical research.

That's right, and at the time this man was allowed legally to make stipulations with the fertility clinic as to where his sperm could be donated to.
The law changed and the clinic followed the law but broke the contract they had with the donor....which is why they were sued and paid him a hefty settlement.

by Original Quill Mon Oct 12, 2020 4:32 pm

Victorismyhero wrote:reference pls quill

The reference is to §597 of the Restatement of Contracts which states: "A bargain collaterally and remotely connected with an illegal purpose or act is not rendered illegal thereby if proof of the bargain can be made without relying upon the transaction." Italics added.

In common law, courts reason that if the proof of the illegal clause is not crucial to the enforcement of the aim of the contract, neither party need raise it in order to make a case on the primary contract.

The test … whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the [illegal] transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, the court will not assist him, whatever his claim may be upon the defendant. Berka v. Woodward, 125 Cal. 119, 127, 57 Pac. 777, 779 (1899).

Thus, the converse is also true:

Where no proof of the illegal transaction is necessary, the court affirmed judgement for the plaintiff. As applied, the rule states that the court may grant the plaintiff relief if he can establish his case without relying upon the illegal feature. C.I.T. Corporation v. Breckenridge, 63 Cal. App. 2d 198, 146 P.2d 271 (1944).

In other words, if the clause deemed illegal is tangential to the purposes of the contract [need not be proved], then it can be ignored. In modern legal parlance, it may be severed.

See, Strong, George, "Illegal Contracts, II. Reliance on Illegal Feature", in 12 Hastings L. J. 347, vol. 12, issue 4 (1961).

by Maddog Mon Oct 12, 2020 4:55 pm

Original Quill wrote:
Victorismyhero wrote:reference pls quill

The reference is to §597 of the Restatement of Contracts which states: "A bargain collaterally and remotely connected with an illegal purpose or act is not rendered illegal thereby if proof of the bargain can be made without relying upon the transaction." Italics added.

In common law, courts reason that if the proof of the illegal clause is not crucial to the enforcement of the aim of the contract, neither party need raise it in order to make a case on the primary contract.

The test … whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the [illegal] transaction to establish his case. If the plaintiff cannot open his case without showing that he has broken the law, the court will not assist him, whatever his claim may be upon the defendant. Berka v. Woodward, 125 Cal. 119, 127, 57 Pac. 777, 779 (1899).

Thus, the converse is also true:

Where no proof of the illegal transaction is necessary, the court affirmed judgement for the plaintiff. As applied, the rule states that the court may grant the plaintiff relief if he can establish his case without relying upon the illegal feature. C.I.T. Corporation v. Breckenridge, 63 Cal. App. 2d 198, 146 P.2d 271 (1944).

In other words, if the clause deemed illegal is tangential to the purposes of the contract [need not be proved], then it can be ignored. In modern legal parlance, it may be severed.

See, Strong, George, "Illegal Contracts, II. Reliance on Illegal Feature", in 12 Hastings L. J. 347, vol. 12, issue 4 (1961).

What was the aim of the contract in the eyes of the donor, and did the recipient of the donation contractually obligate themselves based on that aim?

Would the donor have made the donation without the stipulations on how it could be used?

by Original Quill Mon Oct 12, 2020 5:10 pm

The contract must be interpreted in its own, objective terms.

People change their minds all the time. A contract to buy gold at a fixed price leaves a buyer unhappy if the price of gold drops, or a seller unhappy if the price rises. Usually these disputes come about as a result of a change in circumstances...as is the case here.

A court can't rely on the whims of the parties.

by Syl Mon Oct 12, 2020 5:26 pm

Original Quill wrote:The contract must be interpreted in its own, objective terms.

People change their minds all the time. A contract to buy gold at a fixed price leaves a buyer unhappy if the price of gold drops, or a seller unhappy if the price rises. Usually these disputes come about as a result of a change in circumstances...as is the case here.

A court can't rely on the whims of the parties.

That doesn't cover the case here.
The contract didn't become inoperable because either party changed their mind on a whim, it became inoperable because the equality act came into force which made the contract unable to proceed as it was written.

by Maddog Mon Oct 12, 2020 6:52 pm

Syl wrote:
Original Quill wrote:The contract must be interpreted in its own, objective terms.

People change their minds all the time. A contract to buy gold at a fixed price leaves a buyer unhappy if the price of gold drops, or a seller unhappy if the price rises. Usually these disputes come about as a result of a change in circumstances...as is the case here.

A court can't rely on the whims of the parties.

That doesn't cover the case here.
The contract didn't become inoperable because either party changed their mind on a whim, it became inoperable because the equality act came into force which made the contract unable to proceed as it was written.

And the contract or donation would never have happened, if it occurred after the law changed.

by Original Quill Mon Oct 12, 2020 7:22 pm

Maddog wrote:
Syl wrote:

That doesn't cover the case here.
The contract didn't become inoperable because either party changed their mind on a whim, it became inoperable because the equality act came into force which made the contract unable to proceed as it was written.

And the contract or donation would never have happened, if it occurred after the law changed.

Well it did happen. So now the contract must be interpreted objectively.

by Maddog Mon Oct 12, 2020 11:10 pm

Original Quill wrote:
Maddog wrote:

And the contract or donation would never have happened, if it occurred after the law changed.

Well it did happen. So now the contract must be interpreted objectively.

Apparently not.

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