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

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66 Curtailment of Freedom by the Courtsmuch more often in the political and economicclimate of today than it was when the doctrine oflaisser-faire prevailed. The State through its manifoldagencies and with its many and increasingactivities touches the citizen, whether as an individualor as a member of some association or group, at somany points. It seems almost inevitable that itshould be so if the functions of government are tobe adequately performed in a highly organisedmodern society. What I am drawing attention to isthe fact that there are these arrangements which weremeant by the parties to be legally enforceable, whichmay appear to the layman as agreements or promisesindistinguishable from enforceable contracts, butwhich, as one of the contracting parties is a governmentalagency in the service of the community, arenot treated as enforceable by the courts.One of the conclusions which Professor Mitchellreaches after a detailed survey is that in the case ofpublic authorities generally the obligatory force ofcontract may be weaker than in the case of privatecontracts. " The special purpose for which governmentalagencies exist, the service of the community,requires that on occasions those agencies must bereleased from, or may be able to override, theirobligations. . . . This limitation of the obligationof contract depends not upon the acceptance of anyparticular theory of political philosophy but uponpractical necessity." 3030Mitchell, op. tit., at p. 222.
CHAPTER 4A COMPARISON AND CONCLUSIONSTHE OBLIGATION OF CONTRACTS CLAUSE IN THEAMERICAN CONSTITUTIONTHE rise and decline of general respect for contractsin the United Kingdom make an interesting comparisonwith the movements in the judicial interpretation bythe United States Supreme Court of the " Obligationof Contracts " clause in the American Constitutionand the " Due Process " Amendments to that Constitution.The " Obligation of Contracts " clauseprovides (among other things) that " no State shall. . . pass any law impairing the obligation of contracts."It appears that the clause was framedoriginally for the purpose of preventing the Statesfrom passing laws to relieve debtors of their legalobligation to pay their debts and this restricted viewof its object was at first taken by the Supreme Court.But, particularly under the influence of Chief JusticeMarshall, this narrow view of the objects of the clausewas afterwards rejected and a broad application wasgiven to it, at least for some time. A plea for thisbroader application is contained in a dissentingopinion 1 delivered in 1827 by Chief Justice Marshall:" The power," he observed, " of changing the relativesituations of debtor and creditor, of interfering with1 Ogden v. Saunders, 12 Wheaton, at p. 213.67
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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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8 Growth of Sanctity of Contractsin
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10 Growth of Sanctity of Contractsp
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12 Growth of Sanctity of Contractsp
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14 Growth of Sanctity of Contractsh
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Page 32 and 33: 20 Encroachments on Sanctity of Con
Page 50 and 51: 38 Encroachments on Sanctity oj Con
Page 52 and 53: 40 Curtailment of Freedom by the Co
Page 66: 54 Curtailment of Freedom by the Co
Page 69 and 70: Contracts in Restraint of Trade 57B
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Page 73 and 74: Monopolies and Restrictive Practice
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Page 77: Executive Arrangements 65To illustr
Page 81 and 82: The Obligation of Contracts Clause
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Page 85 and 86: Conclusions 73statutory regulations
Page 87 and 88: Conclusions 75fundamental changes o
Page 89: Conclusions 77Mr. Justice Holmes th
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