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.
The doctrine of enforceability based on public policy generated concernon the part of early jurists.
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.
Eventhe most even-handed and objective judges are likely to have verydifferent opinions concerning morality or what conduct is consistent withthe public good.
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.”
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.
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?
ed, Sweet & Maxwell, 2008, p.333.
Public Policy in the English Common Law
, (1928) 42 Harv L. Rev, 76, 86-88.
Harry G Prince,
‘Public Policy Limitations on Cohabitation Agreements: Unruly Horse or Circus Pony?’
(1985) 70 Minn. L. Rev. 165.
The Growth Of The Law’
, (1924) 144.
Supra at note 6, at 169.