A ‘Pilfered Ginger’

Abstract The chapter explores how, if at all, a product liability claim in tort is affected by the illegal conduct of the claimant in the events which gave rise to the claim. In many legal systems, product liability now has special rules, often dispensing with the need to prove fault; this might give it fewer ways to account for any illegality. The idea that no action lies on an illegal ground (sometimes expressed as ex turpi causa non oritur actio) is well known in contract law but has vaguer boundaries in tort. Common law legal systems have over time moved towards a dedicated defence to deal with such claims, but most non-common law systems do not, typically not even accepting that the claimant’s illegality is normally relevant to tort. In fact, cases applying illegality reasoning, let alone in the form of a defence, seem not to be reported. The chapter considers why they might not be found, including other routes within tort law to express concerns about the claimant’s illegal conduct. Understanding illegal product liability claims adds a new angle on how legal systems integrate doctrines and principles from different parts of the legal system.