Illegality & public policy

Question 1

If the object of the contract is illegal

Answer 1

it is an illegal contract

Question 2

In doubtful cases, where it is not clear that unenforceability is warranted because the agreement involves only a trivial contravention of policy, the court’s decision must rest on a delicate balancing of factors for and against enforcement of the particular agreement.

Answer 2

Court considers:
Protect the parties’ reasonable expectations

Avoid unfair loss if the contract isn’t enforced

Consider any strong public reason to enforce the term

Question 3

weighing public policy against enforcement of a term:

Answer 3

1. the strength of the public policy involved;
2. the likelihood that refusal of enforcement will further that policy;
   3.the seriousness and deliberateness of any misconduct that has occurred; and
3. the closeness of the connection between that misconduct and the agreement.