247 Cal. Rptr. 340 (1988)



[Bovard sued Ralph and American Horse Enterprises (a corporation) to recover on promissory notes that were

signed when Ralph purchased the corporation. The trial court dismissed Bovard's coinplaint.]




The court found that the corporation predominantly produced paraphernalia used to smoke marijuana ["roach clips" and "bongs"] and was not engaged significantly in jewelry production, and that Bovard had recovered the corporate machinery through self-help. The parties do not challenge these findings. The court acknowledged that the manufacture of drug paraphernalia was not itself illegal in 1978 when Bovard and Ralph contracted for the sale of American Horse Enterprises, Inc. However, the court concluded a public policy against the manufacture of drug paraphernalia was implicit in the statute making the possession, use and transfer of marijuana unlawful. The trial court held the consideration for the contract was contrary to the policy of express law, and the contract was therefore illegal and void. Finally, the court found the parties were in pari delicto and thus with respect to their contractual dispute should be left as the court found them.


The trial court concluded the consideration for the contract was contrary to the policy of the law as expressed in the statute prohibiting the possession, use and transfer of marijuana. Whether a contract is contrary to public policy is a question of law to be determined from the circumstances of the particular case. Here, the critical facts are not in dispute. Whenever a court becomes aware that a contract is illegal, it has a duty to refrain from entertaining an action to enforce the contract. Furthermore the court will not permit the parties to maintain an action to settle or compromise a claim based on an illegal contract.


 [There are several] factors to consider in analyzing whether a contract violates public policy: "Before labeling a contract as being contrary to public policy, courts must carefully inquire into the nature of the conduct, the extent of public harm which may be involved, and the moral quality of the conduct of the parties in light of the prevailing standards of the community [Citations.]"


These factors are more comprehensively set out in the Restatement Second of Contracts section 178:


"(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.


In weighing the interest in the enforcement of a term, account is taken of

(a) the parties'justified expectations,


(b) any forfeiture that would result if enforcement were denied, and


(c) any special public interest in the enforcement of the particular term.


In weighing a public policy against enforcement of a term, account is taken of


"(a) the strength of that policy as manifested by legislation or judicial decisions,


(b) the likelihood that a refusal to enforce the term will further that policy,


(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and


(d) the directness of the connection between that misconduct and the term."


Applying the Restatement test to the present circumstances, we conclude the interest in enforcing this contract is very tenuous.' Neither party was reasonably justified in expecting the govermnent would not eventually act to geld American Horse Enterprises, a business harnessed to the production of paraphernalia used to facilitate the use of an illegal drug. Moreover, although voidance of the contract imposed a forfeiture on Bovard, he did recover the corporate machinery, the only assets of the business which could be used for lawful purposes, i.e., to manufacture jewelry. Thus, the forfeiture was significantly mitigated if not negligible. Finally, there is no special public interest in the enforcement of this contract, only the general interest in preventing a party to a contract from avoiding a debt.


On the other hand, the Restatement factors favoring a public policy against enforcement of this contract are very strong. As we have explained, the public policy against manufacturing paraphernalia to facilitate the use of marijuana is strongly implied in the statutory prohibition against the possession, use, etc., of marijuana, a prohibition which dates back at least to 1929. (See Stats.1929, ch. 216, 5 1, p. 380.) Obviously, refusal to enforce the instant contract will further that public policy not only in the present circumstances but by serving notice on manufacturers of drug paraphernalia that they may not resort to the judicial system to protect or advance their business interests. Moreover, it is immaterial that the business conducted by American Horse

Enterprises was not expressly prohibited by law when Bovard and Ralph made their agreement since both parties knew that the corporation's products would be used primarily for purposes which were expressly illegal. Wes conclude the trial court correctly declared the contract contrary to the policy of express law and therefore illegal and void.