My Saul Goodman-inspired solution to the problem of bad promises

[1] See, for example, the entry for “legal system” under “American Samoa” in the CIA World Factbook (2020).

[2] See Restatement (Second) of Contracts, ch. 8, topic 1, introductory note (2008).

[3] See Chunlin Leonhard, “Illegal Agreements and the Lesser Evil Principle”, Catholic University Law Review, Vol. 64 (2015). For an overview of the distinction between intrinsically immoral activity and mere regulatory offenses, see Richard L. Gray, “Eliminating the (Absurd) Distinction between Malum In Se and Malum Prohibitum Crimes”, Washington University Law Review, Vol. 73 (1995), especially pp. 1373-1382.

[4] See, for example, the Oubre v. Entergy Operations, Inc., 522 U.S. 422, p. 431 (1998) (Breyer, J): “To determine whether a contract is voidable or void, courts typically ask whether the contract has been made under conditions that would justify giving one of the parties a choice as to validity, making it voidable, e.g., a contract with an infant; or whether enforcement of the contract would violate the law or public policy irrespective of the conditions in which the contract was formed, making it void, e.g., a contract to commit murder.” See also 1 Restatement (Second) of Contracts §7, and Comment b (1979).

[5] Cf. 17A Am.Jur.2d, Contracts §7, p. 31 (1991): an absolutely void contract “is void as to everybody whose rights would be affected by it if valid.”

[6] In cases where both promising parties (the promisor and promisee) are harmed, then either could elect to exercise this “moral veto” over the promise.

[7] For a critique of this common law distinction, see Gray, op. cit., pp. 1369-73.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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