A agrees with C to print libellous matter against C and B pays Rs. 500 as advance, promising Rs. 10,000 more after printing. B claims back advance paid

This problem sits at a fascinating crossroads between two principles: the unlawfulness of agreements to commit torts under Section 23 of the Indian Contract Act, 1872, and the doctrine of locus poenitentiae — the right to repent before an illegal purpose is executed. The answer to whether B can recover the advance of Rs. 500 turns entirely on which of these principles governs the facts at the moment B seeks relief.

The Agreement and Its Character

The starting point is to understand what kind of agreement A and B have entered into. A has agreed to print libellous matter against C. Libel — the publication of a false and defamatory statement in writing — is a civil wrong, a tort. It injures the reputation and property of another. Section 23 of the Indian Contract Act is unambiguous on this: "the consideration or object of an agreement is unlawful if it involves or implies injury to the person or property of another."

The agreement between A and B is, therefore, void from its very inception. Its purpose is the commission of a deliberate act of tort. This is not a case of a contract that has some taint at its margins — the entire object is to defame C. One must also note the celebrated rule derived from the sources that a printer cannot recover the cost of printing a matter if he knew it to be libellous — which by necessary implication means that the entire substratum of the agreement is tainted with illegality, and no rights or claims can arise from it on either side.

B's Position: The Doctrine of Locus Poenitentiae

Here lies the critical question. B has already paid Rs. 500 in advance. The libellous matter has not yet been printed. The illegal purpose — publication of the libel — has not yet been carried out. Can B repent and reclaim the advance?

This is where the doctrine of locus poenitentiae comes to B's aid, and it is a doctrine of considerable antiquity and importance. The principle is this: where money has been paid in furtherance of an illegal purpose, but that illegal purpose has not yet been accomplished, the person who paid the money may repent before the illegal purpose is executed and recover back what he has paid. The rationale is sound — the law would rather discourage the carrying out of an illegal scheme than leave a party trapped with no remedy merely because he was imprudent enough to make an advance.

The condition for invoking locus poenitentiae is clear: the illegal act must not yet have been performed. Since the printing of the libellous matter has not taken place, B stands at the threshold of the illegal purpose — it remains unexecuted. He has an opportunity to resile. If B repents before the printing is done and demands back his Rs. 500, he should ordinarily be entitled to its recovery.

The In Pari Delicto Bar and Its Limits

One might object that B is equally culpable — he initiated the scheme, paid the money, and promised more. Does the maxim in pari delicto potior est conditio defendentis bar his claim? After all, both A and B agreed to commit a tort against C. The maxim, which means that where both parties are equally guilty the defendant is in the stronger position, is indeed a formidable barrier.

However, the doctrine of locus poenitentiae is recognised as an exception to the in pari delicto rule. The courts have consistently held that where the illegal purpose has not yet been executed, a party who repents before its completion retains the right to recover money paid — even though both parties were originally equally guilty. The guilt of B does not become absolute until the illegal scheme is executed. Until that moment, B is entitled to step back, and the law facilitates that step back as a matter of public policy — for it would rather see the scheme abandoned than consummated.

What If the Printing Has Already Been Done?

The entire calculus changes if A has already printed and is about to publish, or has already published, the libellous matter. Once the illegal purpose has been substantially carried out, B loses the benefit of locus poenitentiae. He can no longer be said to have withdrawn before execution. At that stage, the in pari delicto rule operates with full force, and B would not be entitled to recover the advance. The sources put this principle clearly: the printer who knowingly prints libellous matter cannot enforce any right arising from the transaction, and by extension, the person who commissioned it cannot recover what was paid once the printing is done.

The Decision

B can recover the advance of Rs. 500, provided he repents and demands the money back before the libellous matter is printed. This is a classic application of locus poenitentiae — the illegal purpose remains unexecuted, and the law permits B to withdraw. If, however, the printing has already been completed, B loses this privilege, the in pari delicto rule bars his claim, and the advance is irrecoverable. As for B's promise to pay Rs. 10,000 more upon completion of printing — that promise can never be enforced under any circumstances. The agreement being void under Section 23, A cannot sue B for the balance, just as a knowing printer cannot sue for the cost of printing libellous matter.