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

54 Curtailment of Freedom by the Courtsfailure to discharge his obligation. In the third placeit was the principle of public policy that justified thecourt in refusing its aid. The interests of the Statein agreements involving crimes, immorality andbreaches of positive law are obvious. For as Mr.Justice Cardozo observed in an American case 3 : "Ifthe moral and physical fibre of its manhood andwomanhood is not a State concern, the question iswhat is ? "Moreover it was not (particularly during theeighteenth or nineteenth centuries) imposing an unusual,or perhaps a very difficult, duty upon a judgeto decide what was or was not contrary to positivelaw or morality. But when account had to be takenof the advantages and disadvantages to the communityof competing social and economic policies in arrivingat legal decisions the task of the judge was morecomplex and difficult. Though this is seen mostclearly in the field of contracts in restraint of tradewhere economic interests are affected, it is alsomanifest in cases such as Fender v. Mildmay i andBeresford v. Royal Insurance Co., 5 where the implicationsare predominantly domestic or social.In Fender v. Mildmay 6 a promise by a married man,after a decree nisi of divorce had been pronouncedin his case, to marry a spinster after the decree hadbeen made absolute, was enforced by a majority ofthree to two in the House of Lords, as not being3 Adler v. Deegan 251 N.Y. 467, 484.4[1938] A.C. 1.5[1938] A.C. 586.6[1938] A.C. 1.