Gaming and wagering contracts are generally void. The legislation provides that a contract to recover money or winnings is unenforceable.
No legal action lies to recover money alleged to be won or paid upon a wager or which has been deposited as security for it. A promise to pay a person money in respect of a gambling or waging contract by way of commission, fee or reward for services connected is void.
Under gaming and lotteries legislation, gaming means playing a game of skill or chance or both, where stakes are hazarded by the players.
At common law, gaming was legal if the element of chance was minimal and the outcome depends on the skill of the participants. Certain gaming and wagers are lawful, subject to conditions by the terms of the Gaming and Lotteries Act.
Wagering / Betting
Wagers were valid at common law before being rendered void by the Gaming Act. This provision is now contained in the Gaming and Lotteries Act, 1956. Every contract by a way of gaming or wagering is void. No action shall lie for the recovery of any money or thing which is alleged to be won or to have been paid upon a wager or which has been deposited to abide the event on which a wager is made.
A promise, express or implied, to pay any person any money paid by him under or in respect of such a contract or to pay any money by way of commission, fee, reward or otherwise in respect of the contract or of any services connected with the contract is void and no action lies for the recovery of any such money.
This invalidation does not apply to any agreement to subscribe or contribute to any plate, prize or sum of money to be awarded to the winner or winners of any game, sport or pastime not prohibited by the Act provided that the subscription or contribution is not a stake.
Statutory Regulation of Gaming
At common law, gaming was legal if the element of chance was minimal and the outcome turned on skill.
By statute, gaming is not unlawful if no stake is hazarded with the promoter or banker other than the right to take part, provided that
- only one charge is made in respect of the day on which the game is played,
- the charges are the same amount for all players and
- the promoter derives no personal profit from promotion of the game.
The gaming is unlawful if the chance of all players, including the banker, are not equal, or if part of the stakes is retained by the banker.
A person shall not promote or assist in promoting or provide facilities for any kind of gaming
- in which by reason of the nature of the game, the chances of all the players, including the banker, are not equal, or
- in which any portion of the stakes is retained by the promoter or is retained by the banker otherwise than as winnings on the result of the play,
Gambling and Gaming Contracts
A gambling contract is unenforceable. It is not possible to sue the bookmaker, notwithstanding that the bookmaker may be lawfully licensed.
Where a transaction is repudiated before the party performs, the stakeholder must return the money to the person entitled, usually the person who placed the bet. It is recoverable on a restitutionary basis, as money had and received.
A person is not entitled to an indemnity in relation to a gaming and wagering transaction. Where money is paid to the stakeholder, he is an agent for both. Action may not be taken for monies paid by the stakeholder by a way of winning, even if it breaches his authority.
Lotteries are generally unlawful. A lottery includes all competitions for money or money’s worth involving guesses or estimates of future events or of past events the results of which are not yet ascertained or not yet generally known. The courts have held that games which involve no skill constitute a lottery.
Each participant need not make payment to enter. In deciding whether a lottery exists, it is necessary to look at
- the distribution of prizes
- the fact that the distribution by way of chance
- that there is some contribution by the participants in return for obtaining the chance to take part in the lottery.
No person shall promote or assist in promoting a lottery. No person shall import, print, publish or distribute sell, offer or expose for sale, invite an offer to buy or have in his possession for sale or distribution any ticket, counterfoil or coupon for use in a lottery or any document containing any information relating to a lottery.
A lottery shall not be unlawful if the sale of chances is confined to—
- the members of one society established and conducted for purposes not connected with gaming, wagering or lotteries, or
- persons all of whom work or reside on the same premises, and
- there is no written notice or announcement relating to the lottery except a notice on the premises of the society or other persons concerned or to members of the society.
Lotteries at dances, concerts, carnivals and similar events, the National Lottery, and lotteries held under licence are lawful.
References and Sources
Irish Textbooks and Casebooks
Clark, R. Contract Law in Ireland 8th Ed. (2016) Ch. 14, 15
Friel, R. The Law of Contract 2nd Ed, (2000)
McDermott, P. Contract Law (2001) 2nd Ed (2017) Ch. 15
Enright, M. Principles of Irish Contract Law (2007)
Clark and Clarke Contract Cases and Materials 4th Ed (2008)
English Textbooks and Casebooks
Poole, J. Casebook on contract law. (2014) 12th edition
Stone and Devenney, The Modern Law of Contract 10th Ed (2015)
McKendrick, Contract Law 10th Ed (2013)
Chen-Wishart, Contract Law 5th Ed (2015)
Anson, Reynell, Beatson, J., Burrows, Cartwright, Anson’s law of contract. 29th Ed (2010)
Atiyah and Smith, Atiyah’s introduction to the law of contract. 6th Ed.
Chen-Wishart, M. (2015) Contract law. 5th Ed.
Cheshire, Fifoot and Furmstons, Furmstons and Fifoot Cheshire, Fifoot and Furmston’s law of contract. OUP.
Duxbury, Robert (2011) Contract law. 2nd Ed.
Halson, Roger (2012) Contract law. 2nd Ed.
Koffman & Macdonald’s Law of Contract. 8th Ed. (2014)
O’Sullivan, Hilliard, The law of contract. 6th Ed. (2014)
Peel, and Treitel, The law of contract. 13th Ed. (2011).
Poole, J.Casebook on contract law. 12th Ed. (2014).
Poole, J. Textbook on contract law. 12th Ed. (2014)
Richards, P Law of contract. 10th Ed. (2011)
Stone, R. The Modern law of Contract. 10th Ed. (2013)
Treitel, G. H. An outline of the law of contract. 6th Ed (2014).
Turner, C Unlocking contract law. 4th Ed. (2014).
Upex, R. V., Bennett, G Chuah, J, Davies, F. R. Davies on contract. 10th Ed. (2008).
Stone,Devenney, Text, Cases and Materials on Contract Law 3rd Ed (2014)
McKendrick, Contract Law Text, Cases and Materials 6th Ed (2014)
Stone, R, Devenney, J Cunnington, R Text, cases and materials on contract law. 3rd Ed (2014)
Burrows, A. S. A Casebook on Contract. 4th Ed.
Beale, H. G., Bishop, W. D. and Furmston, M. P. Contract: cases and materials. 5th ed. (2008)
Blackstone’s Statutes on Contract, Tort & Restitution 2017 (Blackstone’s Statute Series)
UK Practitioners Texts
Chitty on Contracts 32nd Edition, 2 Volumes & Supplement (2016)
The above are not necessarily the latest edition.