Private Law Theory

INTRODUCTION
The public policy restraints represent a series of rules operating in the context of private law arrangements which forbid such arrangements from encouraging conduct that the law regards as being against the social interest. These include rules that a contract, trust, will etc must not promote immoral conduct, impermissibly restrain a person from marriage or promote divorce, would encourage separation between a parent and child or encourage conduct injurious to public life. Yet problematically, for an area of law of such broad application, the restraints have often been applied in ways which appear to be inconsistent and, possibly, self-defeating. For instance, some decisions have referred solely to the effect of an arrangement on a person’s conduct as being determinative; while others have treated the object or purpose of an arrangement as decisive. Other decisions have gone further, referring to evidence of the subjective intentions of the arrangement’s maker, and held that these have been determinative. Thus, an arrangement, which may encourage divorce by tying financial rewards to separation, will be void; but not if it incidentally has the same effect as part of some other legitimate purpose, such as a concern that a spouse is bad with money or a poor influence concerning it …

€ (Westlaw)

Derwent Coshott, ‘Tendency, purpose and intention: construing the proper function of the public policy restraints’ [2025] Conveyancer and Property Lawyer 55-68.