From the 2002 (8th edition) of Williams on Wills:
"A condition is against public policy if it is in the interest of the state that it should not be performed. What is contrary to public policy has varied from time to time, and many conditions now upheld which in former days would have been declared to be contrary to the (public) policy of the law. The rule remains, but its application varies with the principles which for the time being guide public opinion."
Generally, the Court will assist any person that can prove that a contract it has entered into has not been performed by the other side. This includes if necessary, full access to the machinery of judgment enforcement. However, the Courts have held that they will not lift a finger to help any person who claims under a contract which is against public policy; they will not, even indirectly, assist any person to violate or breach law or the policy behind a law. This is known as the doctrine of public policy and it is an important part of contract law and the law of wills.
In Egerton, Justice Truro wrote:
"No subject can lawfully do that which has a tendency to be injurious to the public or against the public good which must be termed, as it sometimes has, the policy of the law or public policy in relation to the administration of the law."
Contracts encouraging immorality such as selling a daughter for marriage, seeking to interfere with the administration of justice or injurious to the state, transacting in goods known to be stolen, to commit torts or crimes or to promote sedition or mutiny or, in time of war, enemy attacks have all been held to be unenforceable as against public policy, or seeking to enforce a contract obtained by fraud.
An example is Hendry v Zimmerman in which a person agreed to testify for a party in a court action only if something was left for her in the party's estate plan. The court refused to enforce the contract as against public policy.
The Courts are generally to interfere with the freedom of contract and use the public policy doctrine sparingly. As Justice Burrough said in Richardson:
"Public policy ... is a very unruly horse and when you get astride of it, you never know where it will carry you."
In Fender, Justice Atkin also admonished judges to exercise extreme caution in regards to the doctrine:
"... the doctrine (of public policy) should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds."
French: l'ordre public.
REFERENCES:
- Duhaime, Lloyd, Contract Law Dictionary
- Duhaime, Lloyd, Legal Definition of Ex Turpi Causa Non Oritur Actio
- Duhaime, Lloyd, Legal Definition of In Terrorem
- Egerton v Brown (1853) 4 HLC 1
- Fender v Mildmay (1937) 3 All ER 402
- Hendry v Zimmerman (1948) 1 WWR 385frgy6
- Richardson v Mellish 2 Bing. 229 (1824)
- Re Going (DLR, 1951)
- Re Miller 1938 SCR 1 (Supreme Court of Canada)
- Sherrin, C., Williams on Wills, 8th Ed. (London: Butterworths, 2002), page 355