racialism and non-sexism. Harm should be substantially incontestable. Although the concept of ‘public interest’ generally refers to the interest of society as a whole, it must be remembered that a society’s interest may, in certain circumstances, be served by upholding the interest of a section of the society, or even individual interests. If it is also kept in mind that public policy generally favours utmost freedom of contract, it becomes evident that the determination of public policy is often problematic. A number of contracts will now be discussed as examples of existing indicators of public policy, but it must be borne in mind that public policy also adapts to changing convictions with the passage of time.
Page 85 (a) Agreements involving the administration of justice Any agreement which misuses or thwarts the administration of justice is contrary to public policy. For example, an agreement which deprives a contracting party of any and all opportunity to properly defend him- or herself against future wrongs committed against him or her is void. Another example of this is an agreement by which someone undertakes not to report another person’s crime to the police. This may also fall under (b) below and is an instance of the overlapping mentioned above. It is also contrary to public policy to bribe public officials. (b) Agreements involving crimes and delicts Since every person is expected to behave lawfully, an agreement to commit a crime is contrary to public policy and therefore legally unenforceable. This also applies in respect of an undertaking by a person to commit a delict, for example to defraud a creditor or an insurance company. (c) Agreements affecting the safety of the state An agreement between a person and a subject of an enemy state, which is at war with the former’s own country, is contrary to public policy and therefore not permissible if the agreement is to the advantage of the enemy state. Therefore, an agreement to provide military supplies to the enemy state is unlawful and invalid. (d) Agreements restraining a person’s freedom to participate in legal transactions An agreement which restrains the freedom of a person to take part in legal transactions is contrary to the public interest if the agreement is such a serious infringement of the person’s freedom of action that public policy cannot countenance it. In Roman times, such agreements were considered void. These days, however, the general view is that they are merely voidable. According to this principle a person is not permitted to undertake that he or she will refuse to accept an inheritance upon the future death of the testator. Nor may a person be deprived of the freedom of testation by an agreement stipulating that his or her possessions will be bequeathed in a certain manner. Such agreements in respect of legacies must be distinguished from valid donations between the living.
You've reached the end of your free preview.
Want to read all 265 pages?
- Spring '16