Selling Sex: Analyzing the Improper Use Defense to Contract Enforcement Through the Lens of Carroll versus Beardon

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law of improper use - scenarios in which the transaction itself is not illegal, but the underlying purpose or conduct of one or more parties to the transaction involves using the subject matter in an illegal manner. It is unfortunate that this opinion appears in only a handful of casebooks and its subject matter has received so little scholarly attention because it provides both scholars and educators endless opportunities for exploration of the cultural context within which courts operate and construct case narratives. Its humorous tone and deceptive simplicity also belie a serious failure by the Court to provide a fair and impartial resolution of the parties’ dispute, to identify and balance the competing policy interests, and to create useful precedent for future courts and litigants. Most importantly, this 1963 decision and its implications remain relevant and merit consideration by scholars exploring the intersection of contract and criminal laws related to intimate sexual relationships.