RoiMrable Julian Montgomery

St&it6 Hlghwis;y

Eng'lneer St&e Rlghnlls

Department Austin, Texas

. Dear Sir: OpinionNo. O-1351 Re: Legality of certain prijvlsldns of'the speclflcatlons and contract of the Neches River Bridge.
We acknowledgereceipt of your letter of August 17, 1939, 1i1

which you request the opinion of this departmerit ofi-‘ thelegality oi~the foll.owlng two provisionsof the speclflcaMona and contract of the Neches River Bridge:

(1) ~~f;gP~o~Jr;;;lcle 5, on page 30, : "Rejected

materials shall be'removed frtim the vlclnitg of the'work,and the contractor shall promptly r&mov*, reconstruct, replace;and make good, as may be directed, without oharge, any defectivework. Oversight or errbr (In) judgmentof Inspectors or prevloUs acceutance shall not relieve' the contractorfrom the obligationsto make good defectswhenever dlscovered." (2) ;;ragraph2, Article 111, on page

, of said contract: "Any failure of completedpaint work shall be deemed to be a fault of the~cleaning a~nd

painting,and any finishedpainting that proves.tob‘e

defective shall have the metal recleanedand the entire palntlng.hereIn speblfledapplied. All costs thereof

. .,,

. . shall be charged to the contractor
. e . A contract Is~ilUgal If it violates~'any provision of the CorGtltutIon,

or of a statute or city ordlnahce,or If the performancecalled for by the"~terms of the contractwill result in such a"'vFolatlofib A contract Is Illegal If the"~terms of the contractare contrary to public policy, or If the agreement inHonorable Jullar, Montgomery,

page 2 o-1351

whole br in part is to use the subject matter of the contract, oti is: p%irt thereof for an unlawful purpose. See 10 Tex. Jur';, Paragraph 1.06,

at page 183, and iiiithorltles therein cited; also 10 Tex. Jur., Paragraph107, at page 185, and authorities therein cited.

The followingquotation Is from I.0 Tex. Jur., Paragraph 103, on page 190:

"Generally

speaking,a contractwhich Is nbt In Itself lminoral or in contravention of any law Is-not contrary to public policy. But there Is iio absolute rule by which tb determinewhether a."particular

contract Is contrary to public policy; each case must be judgedby Itself.

"Publicpolicy permits the utmbst.ffeedom of contractsbbtween piirti~es of full tige,

and competent~underatandlng; and requ‘ires

that their contr&ts, when fri+ely ahd voluntarilyentered into, Wall be held sacrea and enforcedby the courts, and this freedom shculdnot lightly be Ffiterfered with by holding that a contraat is contrary to plbllc policy. In dtiubtful cases, thii

pi+esumptlon Xs in favor of the validityof the transactlon; and where public pbllcy IS not settledby-'recognlzed principles,

a contract‘wlll

W6 declared to b& in contpaventlon of It only ln.cases in which the Injury to the public is clear:"
We know of n0 constitutional provIslon, statute,or ordinancewhich Is violatedby the contractual provisionsabove set out ivld

referred to; nor do we find involved in these provisions any question of public policy.

It Is therefore,the opinion of thls.department that the provislors of the specifications and contract.ofthe Neches RlverP Bridge hereinaboveset out are legal and may properlybe made a portioti

of said conti?act.

Yours very truly ATTORNEYGENmL OF,TEXAS RC:FG:wc By s/Ross Carlton APPROVBD SEP 7, Ross Carlton s/Gerald C. Mann

1939 Assistant ATTORNEYGENERAL OF TEUS Approved Opinion CommitteeBy s/&B Chairman