Category Archives: Public policy

‘Dave Hoffman on Hush Contracts’

“In this episode, David A Hoffman, Professor of Law at the University of Pennsylvania Law School, discusses his article ‘Hushing Contracts’, which he co-authored with Erik Lampmann, a student at the University of Pennsylvania Law School, and published in the Washington University Law Review. Hoffman begins by explaining that a ‘hush contract’ is a non-disclosure […]

Chen Meng Lam, ‘Damages for Wrongful Fertilisation: Reliance on Policy Considerations’

ABSTRACT In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in […]

‘Case Comment: Tillman v Egon Zehnder Ltd [2019] UKSC 32′

“Mark Greaves, a barrister at Matrix Chambers, comments on the decision in Tillman (Respondent) v Egon Zehnder Ltd (Appellant) [2019] UKSC 32 which was handed down on 3 July 2019. The judgment is the first employee competition case to be heard by the Supreme Court in 100 years and provides important clarification on the ‘validity […]

‘The Public Voice of Contract Law’

David A Hoffman and Erik Lampmann, Hushing Contracts, Washington University Law Review (forthcoming), available at SSRN. Contracts should not be confused with contract law: contracts are private tools, but contract law is public. This distinction is particularly evident when the legal system provides enforcement services to parties who cannot work out their relationship without seeking […]

Darryn Jensen, ‘The “Policy” That Invalidates Testamentary Conditions’

ABSTRACT Whenever one person’s conferral of a benefit on another is subject to a condition that the conferee not be married to a particular person or to a member of a specified class of persons, the question of whether the condition is enforceable is said to be a question of ‘public policy’. This ‘policy’ question […]

Symeon Symeonides, ‘The Scope and Limits of Party Autonomy in International Contracts: A Comparative Analysis’

ABSTRACT Party autonomy, ie, the notion that parties to a multistate contract should be allowed, within certain parameters and limitations, to agree in advance on which state’s law will govern their contract is now a universal principle – it is accepted in at least 150 countries. However, this virtual unanimity at the level of general […]

Remigius Nwabueze, ‘Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes’

INTRODUCTION Patel v Mirza provides an interesting opportunity to re-examine the role of illegality in the enforcement of trusts. Though Patel was a case on unjust enrichment and contract, its ratio, to the effect that a restitutionary claim would not be necessarily undermined by an underlying illegality, would definitely resonate with a claim in trust […]

Francesco Paolo Patti, ‘The Denial of Restitution Under Italian Law: A Perspective on Patel v Mirza

ABSTRACT An important difference between the Italian system and the German and English systems concerns the scope of application: Article 2035 Italian Civil Code is limited to immoral contracts, ie contracts that are against good morals. Thus, if the parties acted unlawfully (but not immorally), the contract is void and ordinary restitutions apply. The rationale […]

Jason MacLean, ‘Public Policy Is an Unruly Horse and The Law of Contract Is an Ass: A Comment On Douez v Facebook, Inc

ABSTRACT Online boilerplate contracts pose fundamental challenges to the traditional principles of contract law. Can a contract characterized by the complete absence of bargaining, choice, and the possibility of amendment be meaningfully characterized as a contract? Do consumers have a real choice as to the non-negotiable terms and conditions (including litigation avoidance clauses) presented by […]

Angus Macauley, ‘Contracts Against Public Policy: Contracts For Meretricious Sexual Services’

Abstract The law has historically held that contracts for the provision of meretricious sexual services – providing sexual services for reward – are contrary to public policy and are therefore void and unenforceable. In Ashton v Pratt (No 2) [2012] NSWSC 3 (16 January 2012), Brereton J held that this was still the position in […]