Page images
PDF
EPUB

(7) Contracts in restraint of marriage. But the restraint must be general, and not merely restricting marriage with a particular individual or class (y).

(8) Contracts for procuring marriages for reward : 4.4!., a promise to pay money to a man in consideration of his consent to his daughter's marriage (-).

(9) Contracts for immoral consideration : e.g., in consideration of future illicit cohabitation. But if in consideration of past cohabitation they are not illegal, but merely void for want of consideration (a).

(10) Contracts for future separation of husband and wife. It is immaterial whether these are made before or after marriage. But an agreement to terminate differences by an immediate separation is valid (b).

(11) Contracts to deprive parents of the custody of their children (c). But an agreement between the father and the mother, to give the custody to the latter, may be good under the Custody of Infants Act, 1873, s. 2. ment by a father depriving him of the control of the religious education of his child is also void (d).

(12) Contracts in restraint of trade. These are illegal on grounds of public policy. The rules upon the subject were, until recent years, in some respects not altogether free from doubt ; but they have now been clearly defined by the House of Lords in the case of Nordenfeldt v. Marim Nordenfelt Co., [1894] A. ('. 535. By this and subsequent cases it is established, that a covenant or other contract in restraint of trade is legal and enforceable, provided that it

An agree

V.

(y) Scott v. Tyler (1787), 1 Wh. & Tud. L. C. 535.

(c) Hall v. Potter (1695), 3 Lev. 411.

(a) Beaumont v. Reere (1845), 8 Q. B. 482; Pearce v. Brooks (1866), L. R. 1 Ex. 213; Phillips v. Probyn, [1899] 1 Ch. 811.

(b) Wilson Wilson (1847), 1 H. L. C. 538; Hunt v. Hunt, [1897] 2 Q. B. 547.

(c) Humphrys v. Polak, [1901] 2 K. B. 385.

(d) Agar Ellis Lascelles (1879), 10 Ch. D. 49.

complies with two conditions, i.e., (1) that the restraint is no wider than is reasonably necessary for the protection of the person in whose favour it is imposed, and (2) that it is not injurious to the public interests on any specific ground (e).

Subject to these two conditions, a restraint is not now regarded as illegal, even though it may be unlimited in point of space, or extending to the whole life of the covenantor. Each case must accordingly be decided upon its merits ; and the court will have regard to all the circumstances in considering whether a case fulfils the conditions above mentioned (1). A restraint may be partly good and partly bad, and in such a case, if upon a reasonable construction of the contract, the restriction is divisible, the court will enforce it só far as it is free from objections (g).

The burden of proving that a restraint in any given case is unreasonable lies upon the party who asserts such a contention (h). The law does not imply any restraint against carrying on a competing trade in the case of a sale of the goodwill of a business ; but the court will restrain the vendor in such a case from soliciting former customers of the firm (1).

Combinations of workmen for the purpose of restricting the free employment of labour or the free conduct of trade are illegal at common law, as operating in restraint of trade. But there is a statutory exception in the case of trades unions by the Trade Union Acts, 1871 and 1876.

Similarly, combinations of traders or employers for purposes operating in restraint of trade are illegal (k).

(e) See

also

Underwood Barker, [1899] 1 Ch. 300; Haynes v. Doman, [1899] 2 Ch. 13.

(s) See various cases cited in the notes to Mitchell v. Reynolds (1711), 1 Sm. L. C. 391.

(g) Dubowski v. Goldstein, [1896)

1 Q. B. 478; Haynes v. Doman, supra.

(h) Haynes v. Doman, supra.

(1) Trego v. Hunt, [1896] A. C. 7; Jennings v. Jennings, [1898] 1 Ch. 378.

(k) Hilton v. Eckersley (1856), 6 E. & B. 47; but distinguish Mogul S. S. Co. v. MacGregor, Gow & Co., [1892] A. C. 25. And see generally, Allen v. Flood, (1898) A. C. 1 ; Quinn v. Leathem, [1901] A. C. 495 ; Read v. Society

OR VOID

as

II. CONTRACTS ILLEGAL

BY STATUTE. The chief instances of these are as follows :

(1) Gaming and wagering contracts.-A not very satisfactory definition of a “wager” was given by the Court in the case of Hampden v. Walsh (1876), 1 Q. B. D. 192,

a contract by A. to pay money to B. on the happening of a given event, in consideration of B. paying money to him on the event not happening." The definition might be somewhat improved if the word “uncertain " were inserted before the word "event." At common law, wagers and bets were not unlawful, and could be enforced by action, except where they were of an indecent nature, or calculated to disturb the peace, or contrary to public policy. They are now governed by certain statutes.

By the Gaming Act, 1710, as amended by the Gaming Act, 1835, s. 1, all bills and other securities given in consideration of a wager or bet, are deemed to be given for an illegal consideration (1).

By the Gaming Act, 1845, it is enacted that “all contracts or agreements

by way of gaming or wagering, shall be null and void ; and no suit shall be brought

for recovering any sum of money or valuable thing alleged to have been won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made : provided always that this enactment shall not be deemed to apply to any subscription or contribution for or towards any plate, prize, or sum of money to be awarded to the winner

of any lawful game, sport, pastime or exercise."

The Act extends to bets and wagers of every kind, including speculations in “ differences," and time bargains in stock and shares; and the court will look at the real

.

.

of Stonemasons, [1902] 2 K. B. 732.

(1) Woolf V. Hamilton, [1898] 2 Q. B. 337.

[ocr errors]

and not merely the ostensible intention of the parties to any contract, to ascertain whether or not it is within the scope of the Act (m).

By the Gaming Act of 1892, any promise to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the Gaining Act, 1815, or to pay any sum of money by way of commission, fee, reward, or otherwise in respect of any such contract or of any services in relation thereto, is null and void ; and no action may be maintained to recover any such sum of money (n).

It must be observed that the Acts only make bets void, not illegal, in the strict sense. Consequently, if a com- Kill .'' mission agent is employed to make a bet for another person,

he can be forced by action to pay over to the latter 13 en the amount of any winnings (o). The Act of 1892, however, now prevents a commission agent, in the converse case, from suing his principal for money paid in satisfaction of a lost bet. Again, money deposited with a stakeholder to abide the result of a bet, may be recovered on notice given at any time before payment over to the winner (p). A somewhat similar rule applies in the case of lotteries (7).

(2) Simoniacal contracts.--By the statute 31 Eliz. c. 6, contracts to present a parson to a vacant “ benefice with cure of souls” for valuable consideration, are void, as savouring of the ecclesiastical offence of simony (1).

(6) Contracts by certain professional practitioners. --By the Solicitors Acts, 1843 and 1870, costs for work done as an attorney or solicitor cannot be recovered, unless the plaintiff

[merged small][merged small][merged small][ocr errors]

was duly admitted and enrolled as a certificated solicitor. The Medical Act, 1858, s. 32, similarly prevents any action being brought in respect of fees for medical or surgical advice or services, unless the plaintiff is duly registered as a qualified practitioner. Under the Apothecaries Act, 1815, the Pharmacy Act, 1868, the Dentists Act, 1878, and the Veterinary Surgeons Act, 1881, there are similar restrictions with regard to apothecaries, chemists, dentists, and veterinary surgeons respectively.

(4) Contracts within the Tippling Acts.”—By the statute 24 Geo. 2, c. 40, s. 12, and the County Courts Act, 1888, s. 182, provisions are made restraining actions in respect of certain debts and contracts on account of liquor “consumed on the premises,” or supplied in less than a given quantity at one time.

(5) Contracts within the Truck Acts, 1831, 1887, and 1896.—The effect of these Acts, shortly stated, is to render void contracts for the payment of wages otherwise than in money, and contracts by servants to spend wages at particular shops.

(6) Contracts within the Weights and Measures Acts, 1878, and the Coinage Act; 1870, s. 6, which provide in effect, that all contracts by weight or measure, or relating to money shall (with certain exceptions) be made in accordance with the imperial statutory weights or measures, or the current coin of the realm, respectively.

(7) Insurance contracts in certain cases.--By the Marine Insurance Act, 1745, s. 1, so far as regards marine insurance, and by the Gambling Act, 1774, so far as regards life, fire, and other insurances, policies are void except in so far as the person insured had an “insurable interestin the subject matter of the policy. An interest, to be “insurable” in this sense, must, generally speaking, be a pecuniary interest ; but a man is always deemed to have such an interest in his own life ($).

(*) Barnes v. London, etc. Assurance Co., [1892] 1 Q. B. 864 ; Auctil v. Manufacturers' Association, [1899] A. C. 604.

« EelmineJätka »