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

52 Curtailment of Freedom by the Courtswithout evident reluctance, to the necessity ofchoosing the obligation which they were preparedto enforce." laIt seems almost paradoxical that whilst emphasiswas laid in the courts on the sanctity and freedom ofcontracts, a doctrine was introduced in the samecourts and as a corollary of contractual freedomwhich could well be used to its destruction.This implication was obviously in the mind ofLord Mansfield in the celebrated case of Holman v.Johnson, 2 when he observed that:" The objection, that a contract is immoral orillegal as between plaintiff and defendant, sounds atall times very ill in the mouth of the defendant. Itis not for his sake, however, that the objection isever allowed; but it is founded in general principlesof policy, which the defendant has the advantage of,contrary to the real justice, as between him and theplaintiff, by accident, if I may so say. The principleof public policy is this: ex dolo malo non oritur actio.No court will lend its aid to a man who founds hiscause of action upon an immoral or an illegal act.If, from the plaintiff's own stating or otherwise, thecause of action appears to arise ex turpi causa, orthe transgression of a positive law of this country,there the court says he has no right to be assisted.It is upon that ground the court goes; not for thelonger jackals of government, but independent umpires betweenthe Crown and the subject": Trevelyan, English SocialHistory, p. 350.la C. H.' S. Pifoot, Lord Mansfield, at p. 122.2(1775) 1 Cowp. 341.