70 Minn. L. Rev. 163 (1985-1986)
Public Policy Limitations on Cohabitation Agreements: Unruly Horse or Circus Pony

handle is hein.journals/mnlr70 and id is 177 raw text is: Public Policy Limitations on Cohabitation
Agreements: Unruly Horse or Circus
Harry G. Prince*
Whoever reads the count will see something is to be done on each
side; that has been held to be a good consideration. The declaration is
framed upon that. Then the next point is, that it is illegal. I am of
opinion, that on the face of this count there is no illegality. If it be
illegal, it must be illegal either on the ground that it is against public
policy, or against some particular law. I, for one, protest, as my Lord
has done, against arguing too strongly upon public policy; it is a very
unruly horse, and when once you get astride it you never know where
it will carry you. It may lead you from the sound law. It is never ar-
gued at all but when other points fail.1
Parties generally enter into contracts confident that courts
will enforce the agreement against a party who fails to render a
promised performance when it becomes due.2 Without the
courts as an avenue for relief in the event of a breach, con-
tracting parties would be extremely vulnerable and perhaps
would refrain from bargaining. The maintenance of a judicial
process to encourage contracting facilitates efficient commercial
and other exchanges in our free-market society.3 Apart from
* Assistant Professor of Law, University of Illinois College of Law. The
author gratefully acknowledges the valuable research assistance of Brian K.
Smith, University of Illinois College of Law, Class of 1986.
1. Richardson v. Mellish, 2 Bing. 229, 252, 130 Eng. Rep. 294, 303 (1824)
(Burrough, J.).
2. Cf. Farnsworth, Legal Remedies for Breach of Contrac 70 COLUM. L.
REv. 1145, 1147 (1970) (Our system . .. is not directed at compulsion of
promisors to prevent breach; rather it is aimed at relief to promisees to redress
breach.) (emphasis in original).
3. Kessler, Contracts of Adhesion-Some Thoughts About Freedom of
Contrac 43 COLUM. L. REv. 629, 629-30 (1943). Kessler states:
With the development of a free enterprise system based on an un-
heard of division of labor, capitalistic society needed a highly elastic
legal institution to safeguard the exchange of goods and services on
the market. Common law lawyers, responding to this social need,
transformed contract from the clumsy institution that it was in the

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