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Accordingly, the defender's averments in Answer 6, relating to an alleged material change of circumstances, being irrelevant and lacking in specification, these averments ought not to be admitted to probation.
The public policy issue: whether the Agreement was contra bonos mores
[72] On this issue, the pursuer's position was that the Agreement is not contra bonos mores or otherwise contrary to public policy.
[73] The leading authoritative definition of when a contract is contra bonos mores was provided by Lord Dunedin in Farmers' Mart Ltd v Milne 1914 SC (HL) 84 at 86:
"As to the general proposition that you cannot sue upon an illegal contract, there is, of course, no doubt; the question is whether a contract of this sort is an illegal contract. Now, taking it upon Scotch authority first, before coming to English authority, I find that the matter is very clearly dealt with, as it always is, by Mr Bell in his Principles. After setting forth that there are such things as illegal and immoral contracts, he deals in section 37 with contracts void at common law. He first sets forth contracts properly immoral, contra bonos mores, then certain rules as to pactum illicitum, and so on; and then he says this: 'Contracts for indecent or mischievous purposes or considerations, or prejudicial or offensive to the public or to third parties, or inconsistent with public law or arrangements are invalid.' One best sees what is the true meaning of the words he there uses by going to the illustrations that he gives in the note in which he sets forth the cases on which his proposition is founded; and in the clause which I have read,—'prejudicial or offensive to the public or to third parties'—he adds this 'such are, exempli gratia, agreements in which a creditor in fraud of an agreement to accept a composition stipulates for a preference to himself'; and he gives a reference to his well-known work—the large work—Commentaries on the Law of Scotland. Now the Commentaries give more than one illustration of this matter. They give the one I have just read, and they give also a case where a creditor has got a sum in order to accede to a trustee; that is a case, not of regular sequestration, but of private arrangement with the creditor where his concurrence has been bought. And another very good instance of the same thing is given by a case which is referred to in Lord Hunter's judgment and has been cited to your Lordships—the case of M'Gown v. Tod in the Faculty Collection." (Emphasis added.)
The business of the firm is not contrary to the public interest or otherwise contra bonos mores. The sale of barony titles involves no indecent or mischievous purpose. It is not prejudicial or
