11

establish the fairness of the transaction and that it was a free act of the other party. This principle has been generally applied to cases of settlements of property especially gifts, rather than to contracts, but does not seem confined to such cases. It is applied where a parent obtains a conveyance from a child; and also where a child has obtained a conveyance from an aged parent by means of an agreement to support. 12 So an advantage obtained by a husband from a wife; 13 or by one who stands in the position of a guardian from a ward, whether legal guardianship exists or not,14 or by an attorney from a client, a were at times accompanied by a laugh Pa. St. 60; Unruh v. Lukens, 166 Pa. or jest. The persistence during so long St. 324, 31 Atl. 110. a period serves rather to show that the plaintiff would not acquiesce in the defendant's demands."

11 Savery v. King, 5 H. L. Cas. 627; Powell v. Powell, [1900] 1 Ch. 243; Hassell v. Hassell, (Ala. 1918), 77 So. 716; Sayles v. Christie, 187 Ill. 420, 58 N. E. 480; Ferns v. Chapman, 211 Ill. 597, 71 N. E. 1106; Couchman's Admr. v. Couchman, 98 Ky. 109, 32 S. W. 283; Wiley v. Wiley, 178 Ky. 501, 199 S. W. 47; Ashton v. Thompson, 32 Minn. 25, 18 N. W. 918; Davis v. Strange's Exr., 86 Va. 793, 11 S. E. 406, 8 L. R. A. 261.

12 Williams v. Langwill, 241 Ill. 441, 89 N. E. 642, 25 L. R. A. (N. S.) 932n; Mott v. Mott, 49 N. J. Eq. 192, 22 Atl. 997. Cf. Stanfill v. Johnson, 159 Ala. 546, 49 So. 223.

13 Harraway v. Harraway, 136 Ala. 499, 34 So. 836; White v. Warren, 120 Cal. 322, 49 Pac. 129, 52 Pac. 723; Stenger Assn. v. Stenger, 54 Neb. 427, 74 N. W. 846; Hall v. Otterson, 52 N. J. Eq. 522, 28 Atl. 907.

14 Smith v. Kay, 7 H. L. Cas. 750; Noble's Adm. v. Moses, 81 Ala. 530, 1 So. 217, 60 Am. Rep. 175; Albrecht v. Hunecke, 196 Ill. 127, 63 N. E. 616.

15 Gibson v. Jeyes, 6 Ves. 266; Savery v. King, 5 H. L. Cas. 627; White v. Tolliver, 110 Ala. 300, 20 So. 97; Klein v. Borchert, 89 Minn. 377, 95 N. W. 215; Dunn v. Dunn, 42 N. J. Eq. 431, 7 Atl. 842; Wistar's Appeal, 54

15

In Ridge v. Healy, 251 Fed. 798, 805, 164 C. C. A. 32, the court said: "1. A contract between attorney and client relative to compensation for services, made after the relationship has been entered into, is not per se void, but is presumptively invalid, and will be scrutinized very carefully by the courts whenever the transaction is called in question. Such a contract stands on the same basis as a contract between guardian and ward, or trustee and cestui que trust.

"2. The burden of proof is upon the attorney to show fairness and openness in the making of the contract, and that full information and explanation was given to the client, both of the facts, so far as known to the attorney, and also of her legal rights.

"3. Such a contract, in case of dispute as to the meaning of its terms, will be construed most strongly against the attorney.

"4. If the attorney comes into a court of equity, seeking the enforcement of such a contract, he must be prepared to show that such enforcement will not be unfair or inequitable to the client; in other words, that his claim, independent of the express terms of the contract, is so fair and equitable, that a court of equity would not hesitate to enforce it. Perry on Trusts (6th ed.), §§ 202, 203; 1 Story,

physician from a patient, 16 a pastor from a parishioner,17 is subject to the same rule; which is indeed applicable to any relationship where one party is in a position to influence unduly the will of another.

Agreement among competitors to limit competition or maintain prices.... 1648

Any contract may be rendered invalid if tending to produce monopoly.... 1653 Trade union agreements: English law...

1654

§ 1628. Classification of illegal agreements.

As the law forbids the actual performance of certain acts

because opposed to social welfare, so it regards as obnoxious various executory agreements. The common law has developed on this subject as on others, a body of doctrine aside from statutory prohibition. Illegal agreements are sometimes classified as for instance, into those which are contrary to positive law, those which are contrary to morality, and those which are contrary to public policy; 1 but there seems no importance to these distinctions. Except where agreements are in terms forbidden by statute, the common law, whenever it refuses to enforce them, though they comply with the ordinary requirements for the formation of contracts, so decides on the basis of public policy. The precise particulars in which an agreement may be opposed to public policy are so various that any classification intermediate between the general heading of illegal agreements and the specific headings appropriate to each species of them, seems of little value. It may be said broadly that whenever the performance of an act would be either a crime or a tort, an agreement to do that act, will also be illegal. The converse, however, is not true. Many acts which are neither criminal or tortious may not be made the subject of a contract. An agreement beforehand to do them is illegal. This is true for instance of many agreements in restraint of trade and of champertous agreements. It should be said here that when an agreement is spoken of as illegal, it is not meant thereby to assert that it is criminal or that the law will visit with any punishment the making of such an agreement other than refusing to enforce it. Though the making of some agreements may be criminal and punished as such, any treatment of such a question is out of place here. In this treatise the only inquiry which is appropriate is in what cases and to what extent the law denies, for reasons of public policy, the usual characteristics of contractual obligations to agreements which fulfil the technical requirements for the formation of contracts. On the other hand, when an agreement is spoken of as illegal or unlawful, something more is meant than that it is unenforceable because a required form has not been complied with, or because

'This is a division adopted by Sir Frederick Pollock, Wald's Pollock on

Contracts (3d ed.), p. 370, though he recognizes that it has slight value.

it is ultra vires.1 Though the power of courts to invalidate agreements of parties on grounds of public policy is unquestioned, and is obviously necessary, the impropriety of a transaction should be clear in order to justify the exercise of the

power.

"If there is one thing more than any other which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that contracts when entered into freely and voluntarily, shall be held good and shall be enforced by courts of justice.'

§ 1629. Variation of public policy.

In a recent English decision the fundamental principles guiding the court were thus stated: "The question of public policy may well give rise to a difference of judicial opinion. Public policy, it was said by Burroughs, J., in Richardson v. Mellish, 'is a very unruly horse, and when once you get astride it you never know where it will carry you.' But the courts have not hesitated in the past to apply the doctrine whenever the facts demanded its application. In Janson v. Driefontein Consolidated Mines, Ltd.,5 Lord Halsbury, L. C., said: 'I deny that any court can invent a new head of public policy.' I very respectfully doubt if this dictum be consistent with the history of our law or with many modern decisions. In Wilson v. Carnley, the Court of Appeal held that a promise of marriage made by a man who to the knowledge of the promisee was at the time of making the promise married is void as being against public policy. This decision marked a new application or head of public policy. In Neville v. Dominion of Canada News Co., Ltd., the Court of Appeal held affirming Atkin, J., that an 1a For performance of an ultra vires agreement, quasi-contractual recovery may be had. See supra, § 271, but not for performance of an illegal agreement.

6

7

2 Sir George Jessel, in Printing Co. v. Sampson, 19 Eq. Cas. L. R. 462, quoted in Diamond Match Co. v. Roeber, 106 N. Y. 473, 482, 13 N. E. 419, 60 Am. Rep. 464, and in other decisions. See also Hall Mfg. Co. v. Western Steel & Iron Works, 227 Fed.

588, 142 C. C. A. 220, L. R. A. 1916 C. 620; Styles v. Lyon, 87 Conn. 23, 86 Atl. 564; Harbison-Walker Refactories Co. v. Stanton, 227 Pa. 55, 75 Atl. 988.

3 Naylor Benzon & Co. v. Krainische Industrie Gessellschaft, [1918] 1 K. B. 331, 342.

42 Bing. 229, 252.

5 [1902] A. C. 484, 491.
[1908] 1 K. B. 729.

7 [1915] 3 K. B. 556.