The Sanctity of Contracts in English Law - College of Social ...

CHAPTER 2ENCROACHMENTS ON SANCTITYOF CONTRACTSCONTRACTS WHICH EQUITY DECLINED TO ENFORCENOTWITHSTANDING the rejection by the courts of themoral obligation test of actionability of contracts andthe evolution and adoption by them, in preference,of the indifferent or neutral technical test of consideration,ethical or moral as well as social andeconomic problems have kept intruding into the fieldof enforceability of contracts. The intrusions havecome from courts of equity, from the legislature andfrom the common law courts. We are so used to theoperation of the Court of Chancery as a Court ofConscience that its refusal in certain instancespositively to assist a promisee by making an orderdirecting a promisor to fulfil a positive undertaking,or by an injunction to restrain the breach of anegative stipulation, seems natural. And even whereEquity gives its aid to cancel a formal agreement orto rescind a parol one, the intrusion on moral orethical grounds for the purpose of treating a contractas voidable or invalid which would otherwise seemvalid, causes no juristic qualms.From what I have already said in my first lecture,one would be ready to assume that even though theCourt of Chancery was during the seventeenth andeighteenth centuries ready to assist in the enforcementof contractual undertakings, it could not very19