The Cambridge Law Journal

Table of Contents - 1972 - Volume 30, Issue 01  

Articles

Unblinkering the Unruly Horse: Public Policy in the Law of Contract

John Shand

That much-flogged unruly horse, public policy, is still at large. It is therefore the purpose of this article to examine the nature, justification and operation of public policy and to consider whether this is an area of law ripe for reform. It clearly would be unrealistic to attempt to do this on a broad front in the space available, and so this survey will be limited mainly to the crude and superficially obvious case where a contract is tainted with criminality or where the party seeking a contractual remedy relies on his own criminal act. It will primarily be concerned with such statements of principle as “no man shall be permitted to profit from his own wrong” or “ex turpi causa non oritur actio.” This immediately raises a problem for the common lawyer, for such general statements are not readily recognisable as working law, and he will wish to reduce them to a more precise set of rules. Such an attempt will lead us, however, into the centre of a major jurisprudential debate.