Williams v. Patton

DOGGETT, Justice,

concurring.

I concur in the court’s judgment and opinion, but write separately because of a dual concern — the need for greater clarity in the underlying rationale for the court’s action and the unnecessary reference in Justice Comyn’s opinion to a troubling doctrine that could inspire considerable future mischief.

Justice Cornyn would invalidate the contract at issue in large measure because it conflicts with “a principle of natural law” and the “moral” duty of parents to support their children. Opinion at 149. He relies upon Gully v. Gully, 111 Tex. 233 , 231 S.W. 97 (Tex.1921), a case which does indeed note the natural and moral responsibility of the father to support his children, due to the “natural differences between the sexes” and his legal position as “the head of his family.” 231 S.W. at 99, 98 .

Natural law stems not from any mandate of the citizens of this State, nor from any enacted law or ratified constitution. Instead, this set of principles for the guidance of human conduct arises from divine or natural inspiration. In recent times this doctrine has been resuscitated by those eager for judicial imposition of a national moral code. Some have unwisely suggested that natural law would justify invalidation of environmental regulation, 1 while others have relied on it in an effort to infringe upon a woman’s fundamental right to privacy by wrongfully asserting that natural law prohibits abortion under all circumstances. 2

While agreeing fully with Justice Cornyn that parents have a natural and moral obligation to support their children, I would not embrace the archaic dicta of Gully . Generally I prefer to leave the development of moral codes to individuals and families as well as to religious and other institutions. The unnatural injection of natural law into today’s decision can only serve to encourage those who are insistent in demanding that this court force the moral values of a few upon the rest of society.

The philosophy of the dissent, on the other hand, seems more consistent with the view of law and economics advocate Richard Epstein who contends that contract

rules do not refer to flesh-and-blood individuals, but to those lifeless abstractions, A and B, about whom nothing else is known or — more to the point — is relevant. * * * [T]he identities of the contracting parties and the terms on which they contract are of no special concern to the state.... 3

*147 Under this lifeless and sterile concept of contract it is also unnecessary to distinguish between human beings and commodities, 4 whether grains of wheat or dollar bills. Epstein argues further that private agreements should never be set aside on the basis of public policy or unconscionability; rather, all contracts for legal activities must be enforced except those made by incompetent parties and those procured by fraud. The ultimate public policy, according to Epstein, is that “men ... shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by the Courts....” 5

With a similar rigid view of contract doctrine, the dissent relies on the principle of accord and satisfaction to treat the mother and father involved as merely Creditor A versus Debtor B. To analyze the agreement concerning parental support of their daughter in this fashion disserves them as well as the larger public interest. Here we must look beyond the four comers of the contract to consider its subject matter, the identity of the parties, and the surrounding circumstances. 6

Contracts affecting children have long been subject to heightened judicial scrutiny and the application of public policy analysis. This is particularly true with regard to adoption agreements 7 and exculpatory contracts, 8 and extends to child support agreements as well. 9 Because a child is not property but an individual with dignity and humanity, a court should refuse to enforce contracts that are not in the child’s best interest. See United States v. King, 840 F.2d 1276 (6th Cir.1988) (parental consent to tortious treatment of child void as against public policy).

The law of Texas does not require an inflexible, impersonal view of contracts. Contract is basically a theory of human obligations that must at times be adjusted to reflect the society in which agreements are entered. From early times, courts have refused to enforce certain contracts deemed to be against public policy. 10 Oliver Wendell Holmes wrote long ago that there are circumstances in the interpretation of contracts where public policy, the interests of people other than the parties to the contract, must be considered. Beasley v. Texas & Pacific Ry. Co., 191 U.S. 492 , 24 S.Ct. 164 , 48 L.Ed. 274 (1903). On a num *148 ber of recent occasions, our Texas judiciary has refused to enforce various contractual obligations that conflicted with public policy in this state. 11 Substantial societal concerns may be reflected in statutes, state and federal constitutions, judicial decisions, administrative decisions, rules and regulations, or other statements of public policy. 12

The Court’s holding that the contract is unenforceable need not be based on mysticism. The proper basis for today’s decision is found in the well-established law of contracts unenforceable as against public policy. The particular public policy interest is reflected in statutes and case law cited by the court, 821 S.W.2d 145 , and in article 16, section 28, of our Texas Constitution, all of which emphasize the paramount concern of our citizens with promoting the best interests of the child. Unlike natural law justifications, public policy analysis reflects stated societal concerns, not individual judicial inspiration.

MAUZY, J., joins in this concurring opinion.

. James L. Huffman, A Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy, 19 Envtl.L. 527 (1989); James L. Huffman, Avoiding the Takings Clause Through the Myth of Public Rights, 3 J. Land Use & Envtl.L. 171 (1987). See generally Roderick F. Nash, The Rights of Nature: A Histoiy of Environmental Ethfcs 87-120 (1989).

. Charles E. Rice, Issues Raised by the Abortion Rescue Movement, 16 Suffolk U.L.Rev. 15, 29-40 (1989); H.C. Ghent, Criminal Abortion, or Foeti-cide, 20 Transactions of the Tex. State Med. Ass’n 119-20 (1888), discussed in Amy Johnson, Abortion, Personhood, and Privacy in Texas, 68 Tex.L.Rev. 1521, 1526-27 (1990).

.' Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 Yale L.J. 1357 , 1364-66 (1983).

. Taken to an extreme, this view would permit a free market in baby-selling. See Elizabeth Landes and Richard A. Posner, The Economics of the Baby Shortage, 7 J.Leg.Stud. 323, 328 (1978).

. Richard A. Epstein, Unconscionability: A Crit-icar Reappraisal, 18 J.L. & Econ. 293 (1973) (quoting Printing and Numerical Registering Co. v. Sampson L. R„ 19 Eq. 462, 465 (1875)).

. Accord and satisfaction is not applicable when one party has a fiduciary duty to another party involved in the contract. People in certain relationships must act in good faith and avoid self-dealing which places personal interest in conflict with obligations to intended beneficiaries. See Trevino v. Brookhill Capital Resources, 782 S.W.2d 279 (Tex.App.—Houston [1st Dist.] 1989, writ denied) (citing Slay v. Burnett Trust, 143 Tex. 621, 639-640 , 187 S.W.2d 377, 387-388 (1945)). See also Restatement (Second) of Contracts § 193 (1979) (promise inducing violation of fiduciary duty unenforceable as against public policy). Parents stand in a fiduciary relationship with their minor child which supersedes a defense of accord and satisfaction.

. Ford v. Ford, 371 U.S. 187, 193 , 83 S.Ct. 273, 277 , 9 L.Ed.2d 240 (1962) (declining to enforce child custody contract); Knight v. Deavers, 531 S.W.2d 252 (Ark.1976) (denying specific performance of foster parent contract determined not to be in the child’s best interest).

. Judicial treatment of exculpatory contracts which affect children is most illuminating since "business" arrangements are clearly at work, yet contract doctrine fluidly encompasses the child’s best interests. Parental releases of a minor’s potential claims as a condition to participation in group outings, for example, are out-rightly disfavored. See, e.g., Fitzgerald v. Newark Morning Ledger Co., 111 N.J.Super. 104 , 267 A.2d 557 (1970); Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn.Supp. 38 , 143 A.2d 466, 468 (Conn.Super.Ct.1958).

. Houtchens v. Matthews, 557 S.W.2d 581, 585 (Tex.Civ.App.—Ft. Worth 1977, writ dism’d) (public policy supports extended statute of limitations for collection of overdue child support payments). See also Restatement (Second) of Contracts § 190, comment a (1979) (noting public interest in contracts involving child support).

. Walter Gellhorn, Contracts and Public Policy, 35 Colum.L.Rev. 679 (1935).

. Cases invalidating contracts on the basis of public policy include: Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660 (Tex.1990) (unreasonable covenant not to compete); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705 (Tex.1987) (exculpatory contract not expressly requiring indemnification from own negligence); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985) (improper termination of employment-at-will contract); Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936 (Tex.1984) (policy allowing insurer to avoid liability for plane crash due to insured's unrelated technical breach); Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex.1978) (insurance contract excluding personal injury coverage); Crowell v. Housing Auth. of Dallas, 495 S.W.2d 887 (Tex.1973) (lease provision exempting landlord from tort liability to tenants); Smith v. Golden Triangle Raceway, 708 S.W.2d 574 (Tex.App.—Beaumont 1986, no writ) (release from liability for gross negligence); Lone Star Gas Co. v. Veal, 378 S.W.2d 89 (Tex.Civ.App.—Eastland 1964, writ ref d n.r.e.) (contract exempting gas company from liability for own negligence). See also Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 725 (Tex.1990) (Doggett, J., concurring) (survey of public policy restrictions on employment contracts).

. Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 732 (Tex.1990) (Doggett, J., concurring).