Contract Law and Public Policy 2

Mr. George,

Your post was very informative. I was especially drawn to the point you made about how the interests of the State and the interests of the general public are in a constant evolutionary state where such evolution makes it difficult for Courts to be able to reflect the current public sentiment when making a decision. The ability of the judiciary to be able to understand the intent behind both common and statutory contract law and be able to apply the law to a set of facts, while keeping in mind public policy concerns is no easy task.

Yet, we can see the importance of supporting public policy goals which are conducive to a well-functioning and morally conscious society in examining the public policy concern or the capacity to contract. Blum tells us that “the law generally assumes that all people have the capacity to enter into contracts.” [1] However, there are cases such as when a person has not reached the age of majority, or when the person does not have the mental capacity to understand the totality of the undertaking (in this case a K), that the Courts, in support of public policy will make voidable, or fail to deem the K enforceable. [2]

The public policy concerns relating to a person with a lack of capacity to contract are aimed at protecting both a venerable demographic from entering into binding agreements that they do not understand, as well as to protect those with the capacity to contract from entering into agreements destined for litigation because of  a party’s inability to understand and execute the K.



[1] Brian A. Blum, Examples & Explanations: Contracts 269 (6 ed. 2013).

[2] Unenforceable Contracts: What to Watch Out For,,

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