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

Impossibility of Performance 51just and reasonable in its eyes. The judge findshimself the criterion of what is reasonable. Thecourt is in this sense making a contract for the parties,though it is almost blasphemy to say so."CONTRACTS CONTRARY TO LAW OR MORALITYALMOST contemporaneously with the evolution bythe courts of common law by means of decided casesof the doctrine of general enforceability of promisesor agreements, limits to this enforceability were, aswe have seen, being established by the Courts ofChancery and by the legislature and, as we shall nowsee, by the common law courts themselves. Thosewere the days when moral obligation was regardedas the primary factor making promises enforceable;and the general climate—social, economic and legal—favoured freedom of contract and the enforcement ofall contracts freely entered into. Yet bounds werebeginning to appear beyond which the freedom wouldnot be legally recognised. Mr. Fifoot has describedthe position in this way:" The intention of the parties, while it wasthe basis of the law of contract, was not conclusive.The judges could not be expected tosanction an agreement opposed to the interestsof the State, 1 and they were already reconciled1 It is a noteworthy fact that when the doctrine of publicpolicy or State interest was being developed in the courtsthe judges had already ceased to be appointed during theKing's pleasure. They had, by the Act of Settlement, beengiven statutory independence through security of tenure intheir office and so there was no longer any pressure on themto support government measures or policy. " They were no