Mont. Code Ann. » TITLE 28. CONTRACTS AND OTHER OBLIGATIONS · CHAPTER 2. CONTRACTS · Part 7. Illegal Objects and Provisions
Montana Code Annotated

Mont. Code Ann. § 28-2-701 (2026)

What Is Unlawful

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 28
  3. CHAPTER 2
  4. Part 7
  5. 28-2-701 What is unlawful

TITLE 28. CONTRACTS AND OTHER OBLIGATIONS

CHAPTER 2. CONTRACTS

Part 7. Illegal Objects and Provisions

What Is Unlawful

28-2-701. What is unlawful. That is not lawful which is:

(1) contrary to an express provision of law;

(2) contrary to the policy of express law, though not expressly prohibited; or

(3) otherwise contrary to good morals.

History: En. Sec. 2240, Civ. C. 1895; re-en. Sec. 5051, Rev. C. 1907; re-en. Sec. 7553, R.C.M. 1921; Cal. Civ. C. Sec. 1667; Field Civ. C. Sec. 827; re-en. Sec. 7553, R.C.M. 1935; R.C.M. 1947, 13-801.

Notes of Decisions
Cited in 28 cases (3 in the last 5 years), 1980–2025 · leading case: Montana Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2 (Mont. 2008).
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Montana Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2 (Mont. 2008). · cites it 6× “¶ 54 Federated concedes that the policy does not meet these statutory requirements, but argues that the provision should be strictly enforced nonetheless because this Court has previously upheld shorter notice periods. However, each case that Federated cites was decided well…”
Est. of Gleason v. Cent. United Life Ins., 2015 MT 140 (Mont. 2015). · cites it 7× “¶28 In Augustine, while not directly addressing the notice-prejudice rule, we also cited § 28-2-701, MCA, which provides an exception to enforcing an unambiguous contract provision “if that term violates public policy or is against good morals.”
Kopischke v. First Cont'l Corp., 610 P.2d 668 (Mont. 1980). · cites it 6× “1947 [now section 28-2-701, MCA], defines illegal contracts as those: "`Contrary to the policy of express law, though not expressly prohibited.”
Fenwick v. State, Dep't of Military Affairs, Disaster & Emergency Servs. Div., 2016 MT 80 (Mont. 2016). · cites it 8× “The term includes the amendment or repeal of a prior rule.” Section 2-4-102(11)(a), MCA.”
Stark v. Circle K Corp., 751 P.2d 162 (Mont. 1988). · cites it 5× “See § 28-2-701(2), MCA. "The duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.”
Farris v. Hutchinson, 838 P.2d 374 (Mont. 1992). · cites it 4× “See § 28-2-701(2), MCA. "The duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.”
Iowa Mut. Ins. v. Davis, 752 P.2d 166 (Mont. 1988). · cites it 3× “Section 28-2-701(2), MCA. Although the issue presented for our review is one of first impression in Montana, other jurisdictions have been confronted with similar issues.”
MPH CO. v. Imagineering, Inc., 792 P.2d 1081 (Mont. 1990). · cites it 6× “Section 28-2-701(1), MCA, provides that a thing or an act is not lawful if it is "contrary to an express provision of law.”
Belgrade Educ. Ass'n v. Belgrade Sch. Dist. No. 44, 2004 MT 318 (Mont. 2004). · cites it 3× “Insofar as it limits or denies an aggrieved party the statutory right to elect arbitration or another means of dispute resolution in a dispute under the agreement, the mutual consent provision is contrary to § 39-31-306(5), MCA.”
Augustine v. Simonson, 940 P.2d 116 (Mont. 1997). · cites it 2× “2d 705, 709 ; § 28-2-701, MCA. The Farmers policy at issue contains a standard exhaustion clause which provides: "We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of…”
State v. G. Hansen, 2017 MT 280 (Mont. 2017). · cites it 2× “3d 606 (citing § 28-2-701, MCA; § 28-2-604, MCA). ¶9 We discussed a similar plea in Hardin v.”
Gray v. Simonson Farmers Ins. Exc, 940 P.2d 116 (Mont. 1997). · cites it 2× “2d 705, 709 ; § 28-2-701, MCA. The Farmers policy at issue contains a standard exhaustion clause which provides: “We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of…”
Show all 28 citing cases →
Mont. Code Ann. § 28-2-701(1): 7 cases
Montana Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2 (Mont. 2008). “¶ 54 Federated concedes that the policy does not meet these statutory requirements, but argues that the provision should be strictly enforced nonetheless because this Court has previously upheld shorter notice periods. However, each case that Federated cites was decided well…”
MPH CO. v. Imagineering, Inc., 792 P.2d 1081 (Mont. 1990). “Section 28-2-701(1), MCA, provides that a thing or an act is not lawful if it is "contrary to an express provision of law.”
Belgrade Educ. Ass'n v. Belgrade Sch. Dist. No. 44, 2004 MT 318 (Mont. 2004). “Insofar as it limits or denies an aggrieved party the statutory right to elect arbitration or another means of dispute resolution in a dispute under the agreement, the mutual consent provision is contrary to § 39-31-306(5), MCA.”
Schmidt v. Cook, 2005 MT 53 (Mont. 2005).
Fenwick v. State, Dep't of Military Affairs, Disaster & Emergency Servs. Div., 2016 MT 80 (Mont. 2016). “The term includes the amendment or repeal of a prior rule.” Section 2-4-102(11)(a), MCA.”
Mont. Code Ann. § 28-2-701(2): 3 cases
Stark v. Circle K Corp., 751 P.2d 162 (Mont. 1988). “See § 28-2-701(2), MCA. "The duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.”
Farris v. Hutchinson, 838 P.2d 374 (Mont. 1992). “See § 28-2-701(2), MCA. "The duty arises out of the employment relationship yet the duty exists apart from, and in addition to, any terms agreed to by the parties.”
Iowa Mut. Ins. v. Davis, 752 P.2d 166 (Mont. 1988). “Section 28-2-701(2), MCA. Although the issue presented for our review is one of first impression in Montana, other jurisdictions have been confronted with similar issues.”
Mont. Code Ann. § 28-2-701(3): 2 cases
Fenwick v. State, Dep't of Military Affairs, Disaster & Emergency Servs. Div., 2016 MT 80 (Mont. 2016). “The term includes the amendment or repeal of a prior rule.” Section 2-4-102(11)(a), MCA.”
Johnson v. Smith, 2002 MT 124N (Mont. 2002).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.