American Contract Law for a Global Age, 2017a

Cases and Materials
WILLIAM L. CLARK, JR.
HANDBOOK OF THE LAW OF CONTRACTS
(2d ed. Francis B. Tiffany 1904)
154. Any agreement which is contrary to the policy of the law, or public policy,
because of its mischievous nature or tendency, is illegal and void, though the acts
contemplated may not be expressly prohibited either by the common law or by
statute.
155. The test of public policy must be applied in each case as it arises, and
therefore agreements which have been or may be declared contrary to public policy
cannot be exactly classified. The most general are:
(a) Agreements tending to injure the public service.
(b) Agreements involving or tending to the corruption of private
citizens with respect to public matters.
(c) Agreements tending to pervert or obstruct public justice.
(d) Agreements tending to encourage litigation.
(e) Agreements of immoral tendency.
(f) Gambling transactions.
(g) Agreements tending to induce fraud and breach of trust.
(h) Agreements affecting the freedom or security of marriage, or
otherwise in derogation of the marriage relationship.
(i) Agreements in derogation of the parental relation.
(j) Agreements in unreasonable restraint of trade, including
combinations to prevent competition, control prices, and prevent
monopolies.
(k) Agreements exempting a person or corporation from liability
for negligence.
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Review Question 1. As the 1904 Clark treatise demonstrates, the roots of the
public policy defense go back fairly far and have covered a broad range of topics. Do
you think any of the listed categories of suspect contracts would not be categorized as
against public policy today? Which ones? Can you think of any categories of contract
not in Clark’s list where a court today might consider their enforcement to be against
public policy?
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UNIT 16: POLICY-BASED DEFENSES 309