At common law, most games were lawful. Certain games are unlawful by statute. Certain games were prohibited under Gaming Acts, including card games and dice-based games, except for backgammon and other games played with gammon tables.
Some games are not unlawful by themselves but are unlawful if played in a place kept for playing them. These include card games of chance or chance and skill combined or other games of chance; under unlawful gaming legislation from the 16th century
Cock fighting is unlawful at common law and has been prohibited by statue. Keeping any place for fighting, lions, badgers, cocks, bulls, dogs and other animals is prohibited. Certain games are lawful, including horse riding, steeple chasing, billiards, dominoes, under the Gaming Acts.
A gaming contract in the strict sense is playing a game whether by chance or skill, for stakes risked by the player where the parties make mutual promises, either expressly or impliedly in playing for a stake, based on the outcome or result. The contract is a wager if it is limited to two parties. A gaming contract may have more than two parties.
A wagering contract is one between two persons holding opposite views regarding a future uncertain event by which they agree that depending on the way the event turns out, one will win and other will pay the other, the sum of money or another stake. Parties must profess opposite views; they need not necessarily hold the views. The stake is that which is risked or hazarded between the parties.
A multilateral contract is not a wager. A sweepstake depends on the results of a game played by the contributors. It is void as a gaming contract where it is one that the winner is determined by lot or chance. Where not played by the parties may be illegal as a lottery.
Neither of the parties has any other legitimate interest in the contract, other than that they will win or lose the stake A party may have an insurable or legitimate interest in the matter in which event the word “stake” is not appropriate..
There must be a transfer of a stake from one to another. Each party must either win or lose under a wagering contract. There must be some payment, performance or transfer of a benefit.
The happening of the future event or contingency is the subject of the wager. It must be a future or other uncertain event.Where a price is agreed upon although the value is unascertained or where the price or value is to be fixed, this does not constitute wagering of itself.
In discerning a wager, the matter of substance predominates over that of form. Accordingly, a contract which may appear not to be a wagering contract, may have some collateral or other element or condition, which makes it a wagering contract. The fact that there may be some contingencies in a contract does not make it a wagering contract. If wagering elements are, however, added to a contract, they may be severed and the valid part of contract may stand alone, if possible.
Wagering and gaming contracts are void at common law. No action can be bought by the winner of the wager against the loser or the stakeholder for what is claimed to have been won. Wagers on games and other events are void; some may be legal but void. Some are rendered illegal by statute.
An account may not be ordered in respect of wagering action. It may be contempt of court to bring an action without disclosing that the claim or account is in respect of wagering or gaming transactions.
An action may be taken to recover a lawful prize by the winner of a lawful game or sport. The subscription or prize must not be a stake, and the competition must not be by way of gaming or wagering.
If the losing person has paid the stake to the winner, it may not be recovered notwithstanding the illegality. Where a stake is paid to rather than deposited with one party by the other, it is revocable before or after the event unless and until appropriated by the winner.
If the payment made in respect to a bet on a horserace, other sport or game and is received on behalf of the owner or occupier of a house office or room used for the purpose of betting, the deposit may be recovered even if it has been appropriated by the winner.
The stakeholder is agent of the depositors in respect of the sum deposited. He has authority to pay it to the winner. He may not recover unpaid stake by suit. Because of the stakeholder’s authority the loser’s stake is in held for the winner. However, the winner is precluded from bringing an action against the stakeholder for it.
An action may be brought against the stakeholder by other party to recover his own stake even after the event, the subject of the wager, provided the stakeholder has not executed authority given to him by paying the loser’s stake to winner. This is so whether the wager is void or unlawful.
Once the stakeholder has paid over the stake in accordance with the authority, no action can be brought against them even though the wager is unlawful. If he pays the winner after the loser has terminated his authority, he may be liable for the amount paid.
The stakeholder’s authority is terminated if a decision on the event becomes impossible, or if either party dies before the event or the loser dies after the event.
If he does not pay in accordance with his mandate, he may be liable for breach of mandate. Accordingly, he may pay to the person declared to be the winner in accordance with the conditions. He may not waive the conditions without the consent of all the parties.
Where a party demands the return of the stake, or in the case he does not intend to abide by the wager, it may determine the stakeholder’s authority to pay the stake to the winning party. The money ceases to be held on account of the event and is held to the use of the depositor. The stakeholder may not retain it.
Appropriation amounts to payment. However, securities deposited may not be appropriated. Property does not pass until default in paying legally recoverable damages for breach of contract. However, this would not arise in a gaming or wagering contract.
There is a lottery when the distribution is only by chance. There is not a lottery if an element of skill is involved, even if combined with chance. The position will be looked at as a matter of substance to ascertain whether there is or is not a lottery.
Where the purpose is one of carrying on a legitimate business, the fact that profits have to be distributed in certain events by lot will not invalidate the arrangement.
Generally, all lotteries are unlawful, and sales of lottery ticket are invalid. There are limited exceptions. See the separate sections gaming and lottery legislation in Ireland.