Legal Memorandum: Courts declining to enforce a contract which violates public policy is a question of law

Issue: Under Illinois law, when may a court decline to enforce a contract as constituting a violation of public policy?

Whether a contract is unenforceable as violative of public policy is a question of law. See In re Marriage of Newton, 2011 IL App (1st) 090683, ¶ 39 (citing Holstein v. Grossman, 246 Ill.App.3d 719, 726 (1993)).  Courts will not enforce any agreement that violates public policy. See Newton, 2011 IL App (1st) 090683, ¶ 39. However, at the same time, and in light of the fact that courts strongly favor the freedom of parties to contract (see Saba Software, 2014 IL App (1st) 132381, ¶ 60), the test of whether public policy has been violated within a contract is a stringent one. See Holstein, 246 Ill.App.3d at 726. Under this test, courts will declare a contract unenforceable as violative of public policy only when it expressly contravenes the law or a known public policy of our state. See Newton, 2011 IL App (1st) 090683, ¶ 39 (citing Holstein, 246 Ill.App.3d at 726). This would include a contravention of the rules of professional conduct. See Newton, 2011 IL App (1st) 090683, ¶ 39; Holstein, 246 Ill.App.3d at 726 (our "public policy" lies in our constitution, judicial decisions and statutes, which includes our rules of conduct, as they have the force of law).

Chandra v. Chandra, No. 1-14-3858 2016.IL.0000272 (Ill. Ct. App. Feb. 10, 2016) (VersusLaw).

Date: March 1, 2016
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