Odger's English Common Law

Chapter VI.
PUBLIC WRONGS.
So far we have dealt with rights of property and rights of
action (jura in rem, jura in re attend, jura in personam). These
rights are all created and protected by the State, defined and
regulated by its laws.
The State will not regard as a tort every act which has
caused damage—not even if the act be done maliciously with
the intention of causing damage. The act must be in itself
" unlawful ; " and the law decides what acts are lawful, and
what are not. Moreover no action lies to recover compensa-
tion for any harm or loss which is not the direct consequence
of some wrongful act or omission of the defendant's.
So with contracts. The State will not enforce every bar-
gain which the parties may think fit to make between them-
selves. In some cases the State requires that the contract
shall be reduced into writing and signed ; in all cases it
requires either that it shall be reduced into writing and
signed, sealed and delivered by the parties, or that the person
on whom the burden of the contract will rest shall receive
some valuable consideration. The State will not enforce an
illegal or immoral contract, or any contract which it deems
contrary to public policy (such as a betting or wagering con-
tract, or a contract by an occupier of land that he will not
avail himself of the provisions of the Ground Game Act,
1880 *).
The State will not as a rule enforce a contract made
by an infant, though it will now enforce a contract made by
a married woman. The State will not enforce a contract
obtained by fraud, violence or undue influence, or an unfair
bargain made with an expectant heir, or many contracts made
with a professional money-lender. 2
i 43 & 44 Vict. c. 47, ss. 2, 3.
* See the Money-lenders Acta, post, pp. 718, 731.