Part II continues here with the study whether an infidelity clause may be enforceable in New York.

Foreseeability. Compensation for foreseeable emotional distress is the undeniable motivator behind the infidelity clause. “In ascertaining the reasonable contemplation of the parties, the nature and purposes of the contract and the attending circumstances known to the parties should be considered; and those damages which are not foreign to a disclosed or apparent purpose, or which might reasonably have been apprehended from the violation, or the prevention or avoidance of which was within the fair purview of the agreement, are direct, and should be awarded. It may justly be assumed that such damages were within the contemplation and purposes of the parties in entering into the agreement; and therefore they are only a fair and adequate indemnity to the plaintiff for the loss, and do not subject the defendants to a greater liability than they intended to assume when they made the agreement.” Mortimer v. Otto, 206 N.Y. 89, 91‑92 (1912).

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