Liberty of contract

“ The stipulation which the statute nullifies is one made in advance of the injury, that the subsequent acceptance of benefits shall constitute full satisfaction of the claim for damages. It is in this aspect that the question arises as to the restriction of liberty of contract.
It has been held that the right to make contracts is embraced in the conception of liberty as guaranteed by the Constitution. ”

“ We have had frequent occasion to consider the limitations of liberty of contract. While it is highly important to preserve that liberty from arbitrary and capricious interference, it is also necessary to prevent its abuse, as otherwise it could be used to override all public interests and thus in the end destroy the very freedom o opportunity which it is designed to safeguard.
We have repeatedly said that liberty of contract is a qualfied and not an absolute right. 'There is no absolute freedom to do as one wills or to contract as one chooses. ”

“ Such liberty and right embrace the right to make contracts for the purchase of the labor of others, and equally the right to make contracts for the sale of one's own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject-matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common good. ”

“ The former saw in contract a realization of the idea of liberty. The latter saw in it a means of promoting that maximum of individual free self-assertion which he took to be human happiness. Hence the former called for freedom of contract and should have called for wide general enforcement of promises. The latter held to a doctrine of unshackling men and allow [Pg 268] ing them to act as freely as possible, which involved the complementary position of extending the sphere and enforcing the obligation of contract. ”

“ What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses. If we are to avoid mistake in weighing one against the other, we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will; and possession, which is merely the effect of force or the right of the first occupier, from property, which can be founded only on a positive title. ”

“ So too in the case of Nations absolutely independent of each other, if a contract be entered into by them, the failure to comply with any of the provisions of the contract, on the part of either of the high contracting parties, leaves the other at liberty, to vacate and annul the whole contract as to itself; or while affirming a readiness on its part to continue its observance of the obligations, to require of the other part a like compliance. ”

“ Such figures aside, the fact is that the laborer binds himself by a contract: his time and service are the subject matter of the contract, which binds his liberty. The employer is also bound by a contract: he is bound to furnish means of subsistence, according to the terms of the contract, whether the enterprise in which he and the laborers are jointly engaged is successful or not. Every man who earns his living is bound in contracts of this sort; employers and laborers, as we use those words technically, are only special cases. ”

“ One other principle applicable to such a contract as existed in the present case needs to be kept in view. Where no time for the continuance of the contract is fixed, by its terms, either party is at liberty to terminate it at will, subject only to the ordinary requirements of good faith. ”

“ It is usual and right that the law, when a contract is entered into, should require as the condition of its enforcing performance, that certain formalities should be observed, such as signatures, attestation of witnesses, and the like, in order that in case of subsequent dispute, there may be evidence to prove that the contract was really entered into, and that there was nothing in the circumstances to render it legally invalid: the effect being, to throw great obstacles in the way of fictitious contracts, or contracts made in circumstances which, if known, would destroy their validity. ”

“ Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest. ”

“ Should one or more of those contracting parties, sovereignties in themselves, hold it to their interest to transact their business without the assistance of an agent, I cannot perceive that the right can be denied by any provision of the contract. ”

“ What is this 'obligation of contracts,' which is prohibited from being impaired by any act of State legislation? We answer, it is the civil obligation, the binding efficacy, the coercive power, the legal duty of performing the contract. The constitution meant to preserve the inviolability of contracts, as secured by those eternal principles of equity and justice which run throughout every civilized code, which form a part of the law of nature and nations, and by which human society, in all countries and all ages, has been regulated and upheld. ”

“ Government is instituted for their equal protection and benefit.' It then said: 'The usual and most frequent means of acquiring propety is by contract, and one of the most valuable and sacred rights is the right to make and enforce contracts. ”

“ He has shown that the right to contract is not conferred by society, but is a natural original right, brought by each individual into society; and that the obligation of contracts is not the result of positive law, but is intrinsic, and is conferred by the act of the parties. ”

“ In the view of these higher adepts of the law, free contract is so inalienable a natural right of man that not even a statutory enactment will enable a workman to forego its exercise and its responsibility. ”

“ If one party is released, both are free. If one party fails to comply with his contract, that releases the other. This is the fundamental principle of all contracts, applicable to treaties, charters, and private agreements. ”

“ A law which authorizes the discharge of a contract by a smaller sum, or at a different time, or in a different manner, than the parties have stipulated, impairs its obligation, by substituting, for the contract of the parties, one which they never entered into, and to the performance of which, of course, they never had consented. ”

“ To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For him who renounces everything no indemnity is possible. Such a renunciation is incompatible with man's nature; to remove all liberty from his will is to remove all morality from his acts. Finally, it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience. Is it not clear that we can be under no obligation to a person from whom we have the right to exact everything? ”

“ But if, by forbidding a contract to be made, a State law can prevent the contract's having any obligation, State laws, by forbidding any contracts at all to be made, can prevent all contracts, thereafter made, from having any obligation; and thus utterly destroy all men's natural rights to make any obligatory contracts at all. ”

“ When we speak of a compact in a legal sense, we naturally include in it the notion of distinct contracting parties, having mutual rights, and remedies to enforce the obligations arising therefrom. We suppose, that each party has an equal and independent capacity to enter into the contract, and has an equal right to judge of its terms, to enforce its obligations, and to insist upon redress for any violation of them. ”

“ As a contract, every article of it should be inviolable; as the common basis of the strength and happiness of two nations, every article of it should be sacred. I hope I can not be suspected of conceiving a thought so detestable as to propose an advantage to one of the contracting parties at the expense of the other. ”

“ The validity of a contract, as a matter of fact, depends upon the ability of the parties to enter into it, for no court can enforce a contract when it is shown that the principals to it had not legal right to make it or to fulfill the conditions of it. ”

“ As business boomed throughout our growing country giving more States than one an interest in what a contract meant and how it should be enforced for the benefit of the citizens who made it or for whose benefit it was made, practical men began to see that there could not be one single rule of law to govern a contract in which the citizens of many States were interested. ”

“ Such was, or may well have been, the origin of society and law, which bound new fetters on the poor, and gave new powers to the rich; which irretrievably destroyed natural liberty, eternally fixed the law of property and inequality, converted clever usurpation into unalterable right, and, for the advantage of a few ambitious individuals, subjected all mankind to perpetual labour, slavery and wretchedness. It is easy to see how the establishment of one community made that of all the rest necessary, and how, in order to make head against united forces, the rest of mankind had to unite in turn. ”

“ Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. ”

“ I consider it also well settled, that a contract with a state stands on ground in no respect differing from all other contracts; and the constitution of the United States has, in its provisions, no reference specially to such contracts. The state is bound by no higher obligation to abstain from violating its own contracts by law, than to abstain from violating all other contracts. All citizens stand on the same footing in this respect, with the same measure of redress, and the same extent of rights. ”

“ An unbroken horse erects his mane, paws the ground and starts back impetuously at the sight of the bridle; while one which is properly trained suffers patiently even whip and spur: so savage man will not bend his neck to the yoke to which civilised man submits without a murmur, but prefers the most turbulent state of liberty to the most peaceful slavery. We cannot therefore, from the servility of nations already enslaved, judge of the natural disposition of mankind for or against slavery; we should go by the prodigious efforts of every free people to save itself from oppression. ”

“ If these transactions are to be construed by the rules which govern agreements between private individuals, there does not appear to be any reason to infer a contract prior to the written agreement between the parties; not any reason why that agreement should not govern the rights of the parties. ”

“ But into all contracts, whether made between States and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre existing and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. ”

“ The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced,-by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. ”

“ Placing the stamp of legality on a contract voluntarily and fairly entered into by parties for their mutual advantage takes nothing away from either of them. No party who has made an illegal contract has a right to insist that it remain permanently illegal. ”

“ Does the contract, called a bill of exchange, stand on any different footing? It is true, that when once made, by a person having authority to make it, in any given case, it is not open to the same inquiries, in the hands of a third party, that ordinary contracts are, as to the justice, fairness, and good faith which attended its origin, or any of its subsequent transfers; but, in reference to the authority of the officer who makes it, to bind the government, it is to be judged by the same rule as other contracts. ”

“ The obligation of the contract can only be discharged by law, never by the mere virtue of a rule of practice established by court-certainly, not by a rule, made after the execution of the bond, or recognizance. ”

“ If the law be, that no person shall take more than six per centurn per annum for the use of money, and that, if more be reserved, the contract shall be void, a contract made thereafter, reserving seven per cent., would have no obligation, in its commencement; but if a law should declare that contracts already entered into, and reserving the legal interest, should be usurious and void, either in the whole or in part, it would impair the obligation of the contract, and would be clearly unconstitutional. ”