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Public Policy: a very unruly horse?

Public Policy: a very unruly horse?

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An essay for the 2011 Undergraduate Awards Competition by Rebecca Townsend. Originally submitted for Advanced Contract Law at Dublin City University, with lecturer John Cotter in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Rebecca Townsend. Originally submitted for Advanced Contract Law at Dublin City University, with lecturer John Cotter in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
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10/27/2013

 
Public Policy: a very unruly horse?
 Abstract:
 This article discusses Mr. Justice Burrough’s statement in the context of contracts rendered unenforceable by reason of public policy or morality. Itprovides a practical illustration of the way in which the doctrine of publicpolicy operates in the law of contract. It further discusses whether thecourts should continue to use public policy and morality reasons to rendercontracts enforceable and it examines whether the doctrine undermines aperson’s freedom to contract.
Key Words:
Public policy, unenforceable contracts, morality, public interests, freedom tocontract.
Introduction:
 The role of the courts in enforcing promises is a vital corollary to the long-standing principle that the right to contract is an important aspect of individual freedom. Courts never have been available, however, to enforceevery promise or purported contract.
1
The enforcement of procedurallyvalid contracts may, in certain situations, be regarded as illegal and voidat common law on the grounds that they are contrary to public policy; inthe sense of being “injurious to society”.
2
The label implies a unified andeasily applied doctrine, but in reality there is little to suggest this is thecase.
3
It has been recognised for quite some time that this is acontroversial proposition since one person’s view of what is inimical to
1
Harry G Prince,
‘Public Policy Limitations on Cohabitation Agreements: Unruly Horse or Circus Pony?’ 
(1985) 70 Minn. L. Rev. 164.
2
Robert Duxberry,
Contract Law
, 1
st
ed, Sweet & Maxwell, 2008, p.333.
3
Sacha Judd,
‘The Unruly Horse Put Out to Pasture; The Doctrine Of Public Policy in theModern Law of Contract’ 
,
 
(1998) 8 Auckland UL Rev 686.
Page
1
of 
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social relations may not accord with that of another. And, of course, evenassuming that there are commonly accepted norms of public morality,they are likely to change markedly over the course of time.
4
  The doctrine of enforceability based on public policy generated concernon the part of early jurists.
5
While it is instinctive to conclude that courtsshould not enforce contracts structured to attain some reprehensiblemanner, it is equally instinctive to have some concern about courtspossessing an unfettered ability to refuse enforcement of valid contractssolely on the basis of amorphous notions of morality or public good.
6
Eventhe most even-handed and objective judges are likely to have verydifferent opinions concerning morality or what conduct is consistent withthe public good.
7
Judges in different periods of time and judges from allsorts of geographical regions are likely to have different perspectives also:“What one judge most earnestly believes to be the right method is met bythe challenge of men as able and conscientious who say it is the wrongone.”
8
 Justice Burrough, as described above; compared public policy to an unrulyor wild horse, likely to carry one away from the well-trod path of soundlaw. The question is, however, whether the public policy doctrine in theyears since that case has proven to be untamed, or whether it has provento be more like a circus pony trotting along a familiar path and rarelydeparting from it.
9
Therefore, Part 1 of this essay will discuss what is thepublic policy doctrine and is it unruly? Part 2 will survey some of thedifferent grounds upon the courts have held a contract to be contrary topublic policy. Part 3 will discuss whether the courts should use publicpolicy and morality reasons to render contracts unenforceable or not?
4
Robert Duxberry,
Contract Law
, 1
st
ed, Sweet & Maxwell, 2008, p.333.
5
See Winfield,
Public Policy in the English Common Law
, (1928) 42 Harv L. Rev, 76, 86-88.
6
Harry G Prince,
‘Public Policy Limitations on Cohabitation Agreements: Unruly Horse or Circus Pony?’ 
(1985) 70 Minn. L. Rev. 165.
7
Ibid, 166.
8
B.CARDOZO, ‘
The Growth Of The Law’ 
, (1924) 144.
9
Supra at note 6, at 169.
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of 
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I: The Public Policy Doctrine.
Public policy manifests the common sense and common conscience of thecitizens as a whole that extends throughout the state and is applied tomatters of public health, safety, and welfare. It is general, well-settledpublic opinion relating to the duties of citizens to their fellow citizens.However it is a variable notion; as it imports something that fluctuateswith the changing economic needs, social customs, and moral aspirationsof the people.Sherrin.C states in
Williams on Wills that something:
"..is against public policy if it is in the interest of the state that it shouldnot be performed. What is contrary to public policy has varied from timeto time, and many conditions now upheld which in former days wouldhave been declared to be contrary to the (public) policy of the law. Therule remains, but its application varies with the principles which for thetime being guide public opinion."
 Public policy enters into, and influences, the enactment, execution, andinterpretation of legislation.
The doctrine of Public Policy is one of thelargest and widely used grounds for rendering contracts unenforceable.Certain Acts or contracts against public policy are illegal as they tend topromote breach of the law, of the policy behind a law or tend to harm thestate or its citizens (R v Andrews
)An early commentator, focusing on public policy in the common lawtradition, identified two ways in which courts use public policy in reachingdecisions. A court might either base its decision expressly on notions of 
10
C. Sherrin,
Williams on Wills
, 8th Ed, London: Butterworths, 2002, p355.
11
<http://legal-dictionary.com/Public+Policy>
12
 
R v Andrews
[1973] QB 422
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