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12 Growth of Sanctity of Contractspromise, is one which should be received with somelimitation."But that it did not completely disappear beforenearly the middle of the nineteenth century is obviousfrom the cases of Lee v. Muggeridge 25 and Eastwoodv. Kenyon. In the former case, the Chief Justice "of Common Pleas observed 28 : "... it has been longestablished, that where a person is bound morallyand conscientiously to pay a debt, though not legallybound, a subsequent promise to pay will give a rightof action. The only question, therefore, is whetherupon this declaration there appears a good moralobligation."It was in the well-known case of Eastwood v.Kenyan 29 that the doctrine received its death blow,for it was in that case that Lord Denman declaredthat " the doctrine would annihilate the necessityfor any consideration at all, in as much as the mereact of giving a promise creates a moral obligation toperform it. The enforcement of such promises bylaw, however plausibly reconciled by the desire toeffect all conscientious engagements, might be attendedwith mischievous consequence to Society; one ofwhich would be the frequent preference of voluntaryundertakings to claims for just debts."Mr. Fifoot sums up 30 the influence and ultimate25 (1813) 5 Taunt. 36.26(1840) 11 Ad. & E. 438.27 It is not without interest that the Chief Justice's name wasMansfield (but not of course, Lord Mansfield).28 5 Taunt, at p. 46.29(1840) 11 Ad. & E. 438, 450.3 » Op. cit. at pp. 140-141.
Enforceability of Contracts at Common Law 13fate of the conception of morality as a general testof actionability in these words :" The invocation of morality had the virtue ofpresenting a definition, which, if comprehensive,was without a coherent competitor and whichcould be used to discipline a quantity of refractoryprecedent. It escaped serious challenge fora generation and was not expelled from the lawuntil the middle of the nineteenth century."THE INFLUENCE OF BENTHAMISMLong before Lord Mansfield and the judges of histime had made their effort to press the claims ofmorality upon the courts, political philosophers suchas Bodin and Hobbes had publicised their rationalisticspeculations on government, sovereignty and thenature of law. The new gospel of reason movedforward hand in hand with varying conceptions ofnatural law, many of them based upon a cleardistinction between law and morality. The generaltrend of the movement proved in due course to be inthe direction of recognising utility rather than moralityas the justification for the enforcement of obligations.David Hume provided the philosophical backgroundby his teaching that everything which contributes tothe happiness of society " recommends itself directlyto our approbation and goodwill."Jeremy Bentham propagated and elaborated thisnew philosophy of utilitarianism, concentrating inparticular on its application to government and constitutionaland legal reforms. Nature, he proclaimed,
Page 6 and 7: AUSTRALIAThe Law Book Co. of Austra
Page 8 and 9: First published in 1959 byStevens &
Page 10 and 11: HAMLYN LECTURERS1949 The Right Hon.
Page 12 and 13: viiiThe Hamlyn TrustPeoples and rea
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Page 69 and 70: Contracts in Restraint of Trade 57B
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Page 73 and 74: Monopolies and Restrictive Practice
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Monopolies and Restrictive Practice
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Executive Arrangements 65To illustr
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CHAPTER 4A COMPARISON AND CONCLUSIO
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The Obligation of Contracts Clause
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Conclusions 71sections of the edifi
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Conclusions 73statutory regulations
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Conclusions 75fundamental changes o
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Conclusions 77Mr. Justice Holmes th
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