And this is the real basis of the decisions approving the defense of entrapment, though in statement the rule is cloaked under a declaration that the government is estopped or the defendant has not been proved guilty. See Hannay v. Eve, 3 Cranch 242, 247; Bank of United States v. Owens, 2 Pet. 527, 538; Bartle v. Nutt, 4 Pet. 184, 188; Hanauer v. Doane, 12 Wall. 342, 349; Trist v. Child, 21 Wall. 441, 448; Hazelton v. Sheckells, 202 U.S. 71; Crocker v. United States, 240 U.S. 74, 78. A new method of rationalizing the defense is now asserted.

. 264. Lightfoot v. Tenant, 1 Bos. Pull. 551. Aubert v. Maze, 2 Bos. Pull. 371. Shirley v. Sankey, 2 Bos. Pull. 130. Thompson v. Thompson, 7 Ves. Rep. 470. Ex parte Daniels, 14 Ves. Rep. 191. Ex parte Bell, 1 Maul. Selw. 751. Cooth v. Jackson, 6 Ves. Rep. 11. Branton v. Taddy, 1 Taunt. Rep. 6. Edgar v. Fowler, 3 East's Rep. 222. Morck v. Abel, 3 Bos. Pull. 35. Blachford v. Preston, 8 Term Rep. 89. Gallini v. Lahorie, 5 Term Rep. 242. Sullivan v. Greaves, Park. Ins. 8. Mitchell v. Cockburn, 2 H. Bl. Rep. 379. Canaan v. Bryce, 3 Barnw. Ald. 179. Duncanson v. M'Clure, 4 Dall. Rep. 308, Hunt v. Knickerbocker, 5 Johns. Rep. 327. Whitaker v. Cone, 2 Johns. Cas. 58. Belding v. Pitkin, 2 Johns. Ch. 147. Graves v. Delaplaine, 14 Johns. Rep. 146. Griswold v. Waddington, 16 Johns. Rep. 438. Richardson v. Marine Ins. Co., 6 Mass. Rep. 111. Russell v. De Grand, 15 Mass. Rep. 35. Wheeler v. Russel, 17 Mass. Rep. 281. Musson v. Frales, 16 Mass. Rep. 334. Frales v. Mayberry, 2 Gallis. Rep. 560. Hannay v. Eve, 3 Cranch's Rep. 242. Patton v. Nicholson, 3 Wheat. Rep. 204. Mitchel v. Smith, 4 Dall. Rep. 269. S.C. 1 Binn. Rep. 110. Maybin v. Coulon, 4 Dall. Rep. 298. Biddis v. James, 6 Binn. Rep. 321. Coulon v. Anthony, 4 Yeates, 24.Pothier, Des Obligations, No. 43 — 45. Des Assurances, No. 58. Emérigon, Des Ass. tom. 1. p. 211.

It was illegal and void as contrary to the public policy expressly declared by Congress. Cf. Ewert v. Bluejacket, 259 U.S. 129, 42 S.Ct. 442, 66 L.Ed. 858. See also Hannay v. Eve, 3 Cranch 242, 7 U.S. 242, 246-247, 2 L.Ed. 427. We, of course must be governed by the federal law and decisions but it should be noted that the weight of general authority also sustains the view that where an agreement is entered into in violation of a statutory provision, or a public policy, the subsequent repeal of the provision or a change of policy, cannot make the agreement valid since such a repeal cannot restore validity to an agreement which never had "a legal existence". See text and cases cited in 126 A.L.R. 685 et seq. The court below regarded the violation of the statute as a technical violation only and did not regard it as "seriously injuring or nullifying the basic policy behind the statute".

(Under the proposed agreement the bankrupt had to sell more than $250,000 worth of goods before any bonus distribution could take place.) On the contrary, the bonus plan not being in effect while the Stabilization Act controlled salaries, it could not rise phoenix-like out of the ashes of the revocation of the salary clause, because it is a general rule that the terms of a contract must be determined by the law in effect when the contract is made. Hannay v. Eve, 3 Cranch 242, 2 L.Ed. 427; Steffey, Inc. v. Bridges, 140 Md. 429, 117 A. 887. The proposed bonus, moreover, was in derogation of the spirit as well as the purpose of the Act, namely, "In order to aid in the effective prosecution of the war, the President is authorized * * * to issue a general order stabilizing prices, wages, and salaries * * *." 50 U.S.C.A.Appendix, § 961. Any bonus agreement between the parties then was illegal, and the referee properly held the agreement not binding on the bankrupt.

A party opposing a properly supported motion for summary judgment "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 47.7 U.S. 242, 256 (1986). B. Retail or Service Establishment Exemption