Verbal contract involving illegal act: was a law broken? A friend and I were discussing a hypothetical situation (taking place in the U.S.). It seems like one party has committed a misdeed, but we were not able to identify the specific crime or tort that took place. Here is the situation. Alice and Bob make a deal. Alice pays Bob now, and Bob agrees that by tomorrow, he will acquire or create a controlled substance and deliver it to Alice. But before tomorrow, Bob changes his mind and backs out of the deal. He keeps the money Alice gave him. What crime(s) or tort(s) has Bob committed in this situation? Our naive legal analysis: Bob did not commit fraud because he entered into the verbal contract with Alice in good faith. Bob is not guilty of breach of contract, because a contract requiring an illegal act is unenforceable. Bob never possessed or distributed a controlled substance. Possibly this is a conspiracy to deliver a controlled substance. But at a criminal trial, it might very hard to prove that Bob ever intended to provide a controlled substance, rather than just to cheat Alice out of money.
What Crimes Were Committed? The acts would constitute solicitation to manufacturer a controlled substance by Alice, attempted manufacture of a controlled substance by Bob, and conspiracy to commit a controlled substance by both of them. All of these are serious felony offenses. The payment of money by Alice and acceptance of money by Bob to carry out the production of a controlled substance would be a sufficient overt act to support the charges of solicitation, conspiracy and attempt, even though the crime was not carried out. All of these offenses are what are known in the criminal law as &quot;inchoate offenses&quot;. Affirmative Defenses Would Bob or Alice have any affirmative defenses if prosecuted for these crimes? The two main offenses are impossibility and abandonment. We can assume, given Bob's good faith, that it was not impossible for him to manufacture the controlled substances, but he simply decided not to do it. A defendant may plead and prove, as an affirmative defense, of abandonment (typically under typical U.S. criminal statutes) by showing that he: Stopped all actions in furtherance of the crime or conspiracy Tried to stop the crime as it was ongoing Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or other authorities. Bob did shop all actions in furtherance of the crime and tried (successfully) to stop the crime as it was ongoing. But, by not returning the funds and not making clear to Alice that he wanted nothing to do with the plan, Bob may not have met the third prong of an abandonment defense. Alice certainly does not have an abandonment defense. She took no overt acts abandoning the plan. Civil And Criminal Liability For Non-Drug Offenses Also, Bob might have criminal liability for theft, and civil liability to Alice on charges of civil theft or on a claim for restitution. First, a small technicality. Bob did breach a verbal contract. He has an affirmative defense of illegality to civil liability for breaching the verbal contract, but that doesn't change the fact that he did breach the contract. Anyway, while a contract to carry out an illegal act is unenforceable, and Bob would have no right to sue Alice in court if he performed the contract and then Alice failed to pay, it is less clear in this fact pattern where the illegality that bars the contract doesn't actually happen. Retaining property obtained on the basis of a contract that is disavowed that is not carried out, or when the funds are obtained on the basis of a criminal act, might constitute theft for which there might be criminal and civil penalties available, even though it was not fraud. Restitution to put the parties back where they would have been had a contract not be entered into might be available as a remedy. Restitution is often available even when the underlying contract itself fails when people have taken affirmative acts based upon a contract that cannot be legally performed. This wouldn't be a strong case for restitution, and state case law would answer the question, but it wouldn't be a frivolous one either. Of course, since Alice would be admitting to committing a crime is she brought suit (waiving her 5th Amendment right to be silent by doing so) she might be well advised not to sue. And, Bob would still have a strong &quot;unclean hands&quot; defense in an restitution or civil theft lawsuit. The Low Chance Of Charges Being Brought Considered It is true that if no one told anyone that the likelihood of criminal charges being brought is small. But, one can easily imagine hypothetically, that a third party saw what went down in person, or via surveillance video and audio, or that one of the parties told someone what happened and was reported (ex-lovers and mistreated trusted professional aids are notorious for doing things like this), or that someone confessed (often people do things like this when joining a twelve step program or a converting to a new religion), or one of them might testify truthfully at trial despite having a 5th Amendment right not to do so. What If The Jury Doesn't Believe Bob? If the criminal jury thinks that Bob was lying in the first place about good faith, he would have criminal liability for theft and Alice would have liability for solicitation of and conspiracy to commit the manufacture of controlled substances. Alice would be on the hook for the same felonies. Bob would be guilty of a crime the severity of which would depend upon how much money he took from Alice. If Bob doesn't think he can show the facts necessary to establish an abandonment defense, he might be smart to lie and say he was just stealing from Alice if the dollar amount was reasonably small, since the consequences would probably be less severe if he was convicted. It would be very hard to prove that he was truly agreeing to the verbal contract in good faith when he never performed it, but did take the money and not try to return it.
In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless.
I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen.
Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on.
Severability My understand [sic] of contract law in general, is that an illegal or unenforceable clause does not render the whole contract void, but rather that specific clause is essentially stricken out, as if it did not exist. This is not true. Or, at least, not necessarily true. The courts, when interpreting a contract, try to give effect to the parties intentions. Or, more precisely, what an impartial, reasonable person would conclude their intentions at the time were based on the evidence. A contract is a set of mutual promises - if one of those promises is unenforceable, was it the parties intention that: the remainder be enforced, or absent that promise, they would not have made a deal, or they would have made a different deal, say, at a different price? It’s hard to make general statements about severability because they turn on the particular facts of each case. However, the common law doctrine is that severance means severance - you can take words out, but you can’t add words in or change the meaning of words you left behind. If doing that leaves nonsense, then the clause can’t be severed, and the whole contract is void. Further, what’s left must still be a contract. If the severed portion leaves a remainder that does not meet the requirements of a contract (e.g. because the severance totally removed one party’s consideration), then the whole contract is void. Similarly, if the severed item is central to the purpose of the contract, then the whole contract is void. Finally, at least in Common Law countries, there is a difference between provisions that are unenforcable (e.g. unfair restraint of trade clauses) and those that are illegal (e.g. your murder before resignation clause). In most jurisdictions, if a provision is unenforcable at common law or through statute, severability is an option. However, if the provision is illegal, then responses differ. In England and Wales, a provision that requires criminality or the commission of a tort cannot be severed - the illegality 'infects' the entire contract and makes the whole thing void. However, in Australia, the degree of illegality matters - heinous illegality infects the entire contract, but incidental illegality may not. For example, see REW08 Projects Pty Ltd v PNC Lifestyle Investments PTY LTD [2017] NSWCA 269 [23 October 2017] - the NSW Court of Appeal ruled that a property sale that contained clauses designed (by both parties) to defraud the state of Stamp Duty was nevertheless enforceable against the vendor - this would likely have been decided the other way in England and Wales. Of course, many contracts make express provision for unenforcable terms in what are known as severability clauses. These can go further than mere severance and allow the court to add words or even redraft entire sections to preserve the contract. However, this is not a panacea because what you agreed to in your severability clause may not be what you thought you agreed to when the rubber hits the road. For example, when you are forced to sell your Picasso for the 1,000USD deposit only, and you can't get the 100,000,000,000 Iranian Rial balance due to US sanctions. Therefore, deliberately leaving unenforcable provisions in a contract is dangerous because you don't know what you are going to get. However, is it unlawful? Well, that depends. There is nothing wrong with making legally unenforceable agreements. You and I can agree to go to the movies this Thursday. That's an unenforcable social arrangement, not a contract. If you stand me up, I can't sue you even if I bought popcorn for you. Similarly, there is no prohibition on having unenforcable terms in an otherwise legally binding contract, particularly if everyone knows they are unenforcable. Indeed, many large contracts are accompanied by Memorandums of Understanding that are unenforcable statements about how various organisations intend to work together to give effect to the contract. However, if the term is included to be deceptive or misleading by one party against the other (intentionally or otherwise), there may be legal consequences. A person who was misled into entering a contract may be able to have that contract declared void. Also, many jurisdictions make misleading and deceptive conduct in trade or commerce an offence.
UK-based answer here: The crux of your question revolves around whether the buyer(B) had committed an illegal act by withholding information that would have prevented the seller(A) from selling the good at the price he did. The act that B would seemingly be guilty of would be fraudulent misrepresentation A misrepresentation is a false statement of fact or law which induces the representee to enter a contract. The important thing here is if there is a "false statement". In your scenario, there was no false statement made, let alone one which induced A into selling his stamp to B. So there is no fraudulent misrepresentation, or misrepresentation of any kind. Looking at the law of fraud: s3 Fraud Act 2006: A person commits fraud by failing to disclose information when => The defendant: failed to disclose information to another person when he was under a legal duty to disclose that information dishonestly intending, by that failure, to make a gain or cause a loss. With regards to the scenario you've given, no fraud would have been committed because the buyer was under no legal duty to disclose such information
Yes, a crime is committed as is a tort. The exact crime would vary from state to state. The most common description of this crime and tort would be &quot;fraud&quot; but the way that criminal conduct is allocated between particular offenses in states varies considerable. Theft (in jurisdictions where it is broadly defined) and shoplifting (in jurisdictions where it is a distinct offense) would be two other plausible offenses.
You say the permission was "public", therefore I am going to assume that it cannot be argued that there was no agreement. There are two possibilities: If Company B has given consideration for the promise then there is a binding contract and Company A may be able to end it but could not seek redress for when it was in place. If there is no contract then the principle of promissory estoppel should have essentially the same effect. An agreement, including an IP licence, does not have to be in writing nor does it have to have any particular form.