No gun to the head

Photo by Max Kleinen on Unsplash

A contract will seldom be formed as a result of actual violence but threats of violence are more probable. Violence or the threat of violence must be of such a nature that they are enough to overwhelm a mind of ordinary firmness. Colloquially, one might say that there should be no literal gun placed to the head of another person in order to get them to enter a contract. Force and fear will have the effect of making the putative contract void. Threats to take legitimate legal action against someone do not fall into the category of force and fear.

I was reminded of this area of contract law today when reading a report of the activities of the Sicilian Mafia which is responsible for a €10 million agricultural fraud involving European Union subsidies. The Mafia has become particularly adept at creaming off these subsidies over many decades.

One of the features of the most recent fraud to be exposed is the time honoured Mafia practices of extortion and intimidation: law abiding Sicilian landowners are pressurised to sell their land to criminal enterprises which then go on to ‘milk’ the seemingly bottomless pit of EU subsidies. In the parlance of The Godfather, these law abiding citizens are made an offer they can’t refuse and, in the absence of effective law enforcement combined with the traditional weakness of the Italian State, what else are they supposed to do? It would take an extremely brave person (perhaps foolhardy) to stand up to such threats.

A link to the story about the activities of the Sicilian Mafia as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.160120/data/9285206/index.html

When introducing students to the law of contract, one of the first Scottish cases that I discuss with them is several hundred years old – Earl of Orkney v Vinfra (1606) Mor 16481.

It tends to stick in their minds – possibly – because of its particularly lurid details. I often say to the students that the story reads like something from either The Godfather Trilogy or The Sopranos TV series.

Andrew Vinfra was summoned to the Earl’s castle. He was presented with a deed (a formal document) by the Earl, the feudal overlord of the Islands, and he was ordered to sign it. The document was an agreement that Vinfra was to pay the Earl the sum of 2,000 Merks. Vinfra had no intention of agreeing to this proposition, whereupon the Earl started to curse and swear at him. The Earl then bluntly declared to Vinfra that he would drive his whinger (dagger or dirk) into Vinfra’s skull. The terrified Vinfra’s resolve completely crumbled at this point and he signed the document. He was wise to do so: the Earl had a notorious reputation for thuggery and violence. Murder was well within his capabilities.

Later, when at a safe distance from the Earl, Vinfra took steps to have the contract declared void on the grounds that he had signed the document because the Earl had used force and fear. The Earl attempted to pass off the incident as high jinks, but Vinfra was able to prove that his fear of being murdered was genuine. The court declared that the agreement was void: it had not been entered into voluntarily by Vinfra. It could not be enforced by the Earl against Vinfra. It was treated as if it had never existed.

The students, of course, love the drama of Vinfra’s ordeal and they naively scoff that this situation wouldn’t happen today …

My riposte to that attitude is to remind them that there are places not too far from Scotland where organised crime is a feature of daily life. The latest report of events from Sicily tends to bear this out.

Further reading about the Italian Mafia organisations and its ‘business’ activities can be found below:

  • Mafia Business: The Mafia Ethic and the Spirit of Capitalism by Pino Arlacchi (1986: Verso Books)
  • Cosa Nostra: A History of the Sicilian Mafia by John Dickie (Hodder: 2007)
  • Mafia Republic: Italy’s Criminal Curse. Cosa Nostra, ‘Ndrangheta and Camorra from 1946 to the Present by John Dickie (Sceptre: 2014)
  • The Sicilian Mafia: the Business of Private Protection by Diego Gambetta (Harvard University Press: 1996)
  • Gomorrah: Italy’s Other Mafia by Roberto Saviano (Picador Classic: 2012)

Copyright Seán J Crossan, 17 January 2020

Hitman (or woman) for hire

Photo by Dimitri Houtteman on Unsplash

Implausible or unlikely as the above Blog title may sound, you can apparently hire people to carry out murders on your behalf – quite easily.

How did I find this out? Simply by chancing upon another Blog article on WordPress. This article exposed one chilling aspect of modern life: the reality of the so called ‘dark web’. This is an unregulated part of the internet where all sorts of criminal activities (arms dealing, drugs, human trafficking, prostitution – and even murder for hire) can be accessed.

The article in question (see the link below) discussed a situation where someone arranged the murder (or a ‘hit’) on their stepmother for $5:

https://wordpress.com/read/feeds/22973954/posts/2522423606

We often think of contract killings as being something straight out of Hollywood. After all, one of the most popular movies currently being aired on Netflix is ‘The Irishman‘ (directed by Martin Scorsese) which depicts the life and times of Frank Sheeran, an enforcer for the Mafia. In one of the scenes, an enquiry is put to Sheeran by Russell Bufalino, a Mafia boss: ‘I hear you paint houses?’ Painting houses has nothing to do with interior decoration, but rather that Sheeran is a gun for hire.

Going back a few years, a terrific (and underrated) Hollywood movie starring Brad Pitt and the late, great James Gandolfini (‘Killing Them Softly’) had scenes with the main character, Jackie Cogan (played by Pitt) negotiating contract killings with a Mafia lawyer – as if this was a normal business transaction (in certain worlds/sub-cultures it will be).

It so happened this morning, that I was discussing the law of contract with a group of students. In particular, I had planned to talk to them about void contracts. The above article was, therefore, something of a fortunate discovery in that arranging the murder of another person (for a fee) is a really graphic example of a void agreement. In other words, such an agreement is a criminal conspiracy.

I also have to add that I was pretty shocked at the very low value placed on the potential act of taking of another human life.

If an agreement (or part of it) is deemed to be void, it can have no legal force – it is as if it never existed. Neither party to the agreement can enforce it. So, if the person who hired the killer was unhappy that the murder had not in fact been carried out or had been botched in some way, would they have any legal redress?

I hope you answered absolutely not! The law would be a complete ass if participants in criminal conspiracies were able to enforce their agreements in the civil courts on the basis of contract law. Such a situation would positively encourage people to enter into all sorts of questionable activities.

It reminds me of the case recounted to my first year law class by Professor John Huntley many years ago (Everet v Williams [1725] 2 Pothier on Obligations 3 9 LQR 197). He told the story of the two highway robbers who agreed to split the proceeds of their crimes on a 50/50 basis. One of the robbers made off with the stash leaving his partner in crime with nothing. This unfortunate individual took legal action to recover his share. As Professor Huntley concluded, when the judge discovered the background to the legal action, he was very fair: he ordered that the two highwaymen should be put to death by hanging.

That is the moral of the story: if you get involved in a criminal conspiracy, the law does not offer you any protection if you are cheated by your partners in crime. Furthermore, silence (on your part) is probably a sensible option because to attempt to recover your share of the ill gotten gains would amount to a confession of guilt on your part. Don’t be naive and think you could be vague about the background to the legal action; the judge will almost certainly want to know why you are raising an action to recover a debt or items of property.

Copyright Seán J Crossan, 18 December 2019