Unenforceability of Contract: Are Fundamental Human Rights and Freedoms under Ghana's 1992 Constitution Grounds of Public Policy?

Abstract

Deployment of illegality or public policy to render unenforceable is one area of the common law which developed early to contain untrammelled party autonomy or freedom of contract. Traditionally, contracts that advance immoral purpose, undermine integrity in public office or governance as well as ousting jurisdiction of the courts are peremptorily deemed contrary to public policy and consequently unenforceable. In this paper I argue that the imposition of general obligation on all organs of government and private bodies and individuals to observe fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution makes it imperative for the common law concept of public policy to be expanded to encapsulate non-compliance with fundamental freedoms and human rights as a ground for rendering contract unenforceable.