Contracts End Where Abuse Begins

Contracts shape our daily lives. They govern jobs, housing, medical care, recreation, even the apps we use. Courts generally enforce them because they embody freedom of contract — the belief that people should be able to make their own bargains.

But there’s a line contracts cannot cross. No contract can make abuse legal. No waiver can excuse sexual assault, trafficking, or domestic violence. No NDA can lawfully silence a crime. These limits are grounded in centuries of legal doctrine, modern statutes, and a simple principle: public policy trumps private paper.

This longform guide explores where that line is drawn, why courts enforce it, and what the Rubin case shows about the consequences of trying to contract around abuse.

1. The Boundaries of Freedom of Contract

The doctrine of freedom of contract emerged from English common law and shaped American law. Courts generally presume that competent adults can agree to almost anything — risky jobs, high-interest loans, arbitration clauses. But even early common-law judges recognized limits.

As Lord Mansfield put it in the 18th century:

“No man can stipulate for immunity from his own fraud, or violence, or violation of the law.”

In other words, you can’t bargain away society’s basic rules. If contracts are the rules of private ordering, public policy is the rule of the game itself.

2. The Rule of Public Policy

American courts void contracts that:

• Excuse intentional torts such as assault or battery.
• Waive rights granted by statutes (e.g., Title VII, anti-trafficking laws).
• Interfere with justice, such as promises not to report crimes.

The rationale: private agreements cannot erase society’s interest in preventing harm or undermine the integrity of courts and law enforcement.

3. Case Law That Defines the Limits

Tunkl v. Regents of Univ. of Cal., 383 P.2d 441 (Cal. 1963)

A hospital required patients to sign a release waiving liability for negligence, even gross negligence. The California Supreme Court struck it down, holding that contracts affecting the public interest cannot eliminate basic duties of care.
Lesson: freedom of contract does not extend to agreements that endanger human safety in contexts where people lack bargaining power.

Hanks v. Powder Ridge Restaurant Corp., 885 A.2d 734 (Conn. 2005)

A snowtubing facility made customers sign broad waivers. When one patron was badly injured, the operator tried to avoid liability. The Connecticut Supreme Court refused, ruling that waivers may cover ordinary negligence but not reckless or intentional conduct.
Lesson: contracts can allocate risk of accidents — but not excuse deliberate harm.

Other Supporting Examples

• Broemmer v. Abortion Services of Phoenix, 840 P.2d 1013 (Ariz. 1992): Arbitration clause in adhesion contract voided because it violated public policy where there was unequal bargaining power.
• Employment law: Courts routinely strike down clauses waiving harassment or discrimination claims under Title VII, recognizing that statutory rights cannot be bargained away.

4. Statutory Backstops

Beyond common-law doctrine, modern statutes reinforce the limits:

• Trafficking Victims Protection Act (TVPA): Prohibits any contract or scheme designed to compel labor or sexual services through coercion. NDAs cannot erase this prohibition.
• Title VII (Civil Rights Act of 1964): Bars waivers of the right to sue for discrimination or harassment unless part of a knowing, voluntary settlement.
• State Domestic Violence Statutes: A spouse cannot sign away the right to seek protection orders or to press criminal charges. Such agreements are routinely voided.
• Thirteenth Amendment: Abolished slavery and involuntary servitude. Any “contract” for indentured servitude is automatically void.

5. Hypotheticals That Show the Rule

Sometimes hypotheticals illustrate the principle more starkly than real cases:

• Indentured Servitude Contract: Imagine someone “agreeing” to work for life under abusive conditions with no right to leave. Such an agreement would be struck down immediately as contrary to the Thirteenth Amendment and basic public policy.
• Domestic Violence Waiver: Suppose a couple signs a “relationship contract” where one waives the right to sue or call police for domestic violence. That contract is void. The state has an overriding interest in preventing domestic abuse.
• Workplace Harassment Waiver: If an employer inserted a clause saying, “Employee agrees never to bring claims under Title VII,” courts would invalidate it. Statutory rights cannot be erased by contract.

Each shows the same principle: there are limits to what can be bargained away.

6. The Rubin NDAs: When Contracts Backfire

Howard Rubin, a former Wall Street trader, asked women to sign nondisclosure agreements before entering his Manhattan penthouse dungeon. Testimony described how:

• Blank NDAs were kept in a safe, ready to be produced.
• Women were asked to sign them after being served alcohol.
• Language suggested women assumed all risk of injury.

Rubin believed these documents insulated him. At trial, they did the opposite. The NDAs became exhibits showing coercion, intimidation, and control.

Judge Brian Cogan allowed them into evidence not as shields but as swords: proof Rubin tried to suppress testimony. The jury found him liable under the Trafficking Victims Protection Act. The message was clear: contracts cannot be weapons for silencing abuse.

7. Comparative Perspectives

• United Kingdom: The Unfair Contract Terms Act 1977 prohibits exclusion of liability for death or personal injury caused by negligence. Courts are even stricter than in the U.S. about striking down unfair terms.
• European Union: Consumer protection directives void terms that create “significant imbalance” in rights, especially clauses limiting liability for bodily harm.
• Takeaway: Across jurisdictions, the principle holds — you can’t privatize away the state’s interest in preventing harm.

8. Policy Rationales

Why do courts refuse to enforce these agreements? Three main reasons:

1. Protecting Human Dignity: The state cannot allow contracts that degrade or exploit individuals.
2. Preventing Coercion: Many such waivers are signed under pressure, with unequal bargaining power.
3. Maintaining Legal Integrity: Allowing contracts to erase liability for crimes would undermine law enforcement and public trust in justice.

9. The Counterargument (and Why It Fails)

Some libertarians argue that adults should be free to contract anything, even waivers of abuse claims, if both sides consent. But courts reject this for two reasons:

• Consent under coercive circumstances (e.g., intoxication, economic pressure) is not true consent.
• Even if consent were real, society has a non-negotiable interest in preventing violence.

Freedom of contract is broad — but not absolute.

10. Reader FAQ

Q: Can an NDA stop me from reporting abuse to police?
A: No. Courts and statutes make clear that NDAs cannot block crime reporting.

Q: Can I waive my right to sue for assault if I sign a contract?
A: No. Courts uniformly hold such clauses void as against public policy.

Q: Why do companies include unenforceable clauses?
A: Deterrence. Even if unenforceable, they can create a chilling effect on victims who don’t know their rights.

Q: Are gym waivers enforceable?
A: Sometimes — for ordinary negligence. But not for reckless or intentional harm.

11. Bottom Line

Freedom of contract is a cornerstone of law, but it ends where abuse begins.

Howard Rubin’s NDAs are a cautionary tale: what he thought were shields turned into evidence against him. More broadly, centuries of doctrine, modern statutes, and public policy all agree: you can’t contract around abuse.

Follow Small Matter for longform legal analysis that cuts through complexity — where contracts, courts, and public policy meet, and where the law draws bright lines for accountability.