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

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58 Curtailment of Freedom by the Courtsnot the same thing as the policy of the government,whatever its complexion."On the whole one must agree with Kekewich J. thatthe expression does not admit of precise definition 15 :" All authorities," remarked the learned judge," from first to last, concur in one thing—viz., thatthe doctrine on this subject is founded on ' publicpolicy '; and I cannot but regard the jarring opinionsas exemplifying the well-known dictum of Mr. JusticeBurrough in Richardson v. Mellish 16 that publicpolicy is a very unruly horse, and when you onceget astride it you never know where it will carryyou. Public policy does not admit of definition andis not easily explained." One must, in the circumstances,be satisfied with a general description ratherthan a definition. Sir Percy WinfieM described publicpolicy as "a principle of judicial legislation orinterpretation founded on the current needs of thecommunity." 17 Lord Truro in Egerton v. Brownlow 1 *described it as: " that principle of law which holdsthat no subject can lawfully do that which has atendency to be injurious to the public, or against thepublic good—which may be termed the policy of thelaw, or public policy in relation to the law."In its application to the field of contract LordWright has described it as " considerations of publicinterest which require the courts to depart from« Davies v. Davies (1887) 36 Ch.D. at p. 364.16(1824) 2 Bing. 229, 252." 42 Harv.Law Bev. 76, 92.18(1853) 4 H.L.C. 1 at p. 196.
Contracts in Restraint of Trade 59their primary function of enforcing contracts andexceptionally refuse to enforce them." 19The unsatisfactory nature of such a vague, indefinabletest of invalidity of contracts has often beencritically commented upon. 20 Lord Lindley oncedescribed 21 it as: "a very unstable and dangerousfoundation on which to build, until made safe bydecision." 22Another criticism of it is that it must inevitablybe a variable quantity 23 —influenced by the judge'straining, outlook and philosophy, 24 varying with theprevailing fashions in moral, economic or socialprinciples, 25 or even with changing economic or socialpractices. As Lord Wright observed in Fender v.Mildmay 26 " certain rules of public policy have tobe moulded to suit new conditions of a changingworld."Public policy in its application to legal situationsgenerally has in its effects been disabling and prohibitive.This is most clearly illustrated in the field1 9 See Fender v. Mildmay [1938] A.C. 1, 38; Legal Essays,pp. 66-96.2° See Cheshire and Fifoot, 4th ed., p. 277.21 In Janson v. Driefontein Consolidated Mines, Ltd [1902]A.C. 484, 507.22And see per Burrough J. in Richardson v. Mellish (1824) 2Bing. 229, 252. See also E. E. Megarry, Miscellany at Law,pp. 270 et seq. See Davies v. Davies (1887) 36 Ch.D. at p. 364.M See Fender v. Mildmay [1938] A.C. 1; Hill v. Wm. Hill(Park Lane), Ltd. [1949] A.C. 530.25See Art., "Economic Theories and English Case Law," 47L.Q.B. 183-202; and see Friedmann Legal Theory, 3rd ed.,pp. 335-342.»« [1938] A.C. 1.
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AUSTRALIAThe Law Book Co. of Austra
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First published in 1959 byStevens &
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HAMLYN LECTURERS1949 The Right Hon.
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viiiThe Hamlyn TrustPeoples and rea
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2 Growth of Sanctity of Contractsmo
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4 Growth of Sanctity of ContractsTh
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6 Growth of Sanctity of Contractsen
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Page 85 and 86: Conclusions 73statutory regulations
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Page 89: Conclusions 77Mr. Justice Holmes th
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