While common law can develop on analogy with statute law it can also
develop in reaction to its limitations. (i) Enforcing Unenforceable Contracts.
The Statute of Frauds 1677
(UK) (29 Car 2 c 3) rendered a number of
contracts unenforceable unless they were evidenced in writing. In response to
this over several centuries courts developed the common law doctrine of part
performance, which created common law exceptions to a statutory rule. These
rules allowed specific performance of a contract that on its face the Statute of
Frauds renders unenforceable.
220
(ii) Enforcing Illegal Statutes. Frequently a
statute will make a contact illegal in some way. For example it may be illegal to
make the contract or illegal to perform it in a certain way. Generally an illegal
statute is unenforceable. Courts, however, have modified this in some
circumstances. Generally they will “not refuse to enforce rights arising under a
contract or trust merely because the trust or contract is associated with or in
furtherance of a purpose rendered illegal by a statute which applied to the
relevant parties”.
221
___________________
220
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
at para [19]; (1999) 201 CLR 49
221
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
538; Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215.
 |
 |
 |