Restraint of trade
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Restraint of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business.
Contractual obligations not to trade are illegal agreements on public policy grounds unless they are reasonable in the interests of both contracting parties and of the public at large.[1]
Restraint of trade mainly affects post-termination restrictive covenants in employment contracts, and restrictions on competition in contracts for the sale of businesses.
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[edit] Restraining workers
Restraining clauses in employment contracts are enforceable if:
- There is a legitimate interest which needs to be protected. Examples of such interests include business connections and business secrets.
- The restraint is reasonable, i.e. sufficiently protects the interest and goes no further.
Generally, if a restraining clause is found to be unreasonable, then it will be void. In certain circumstances though the court may uphold it either by construing ambiguities or by severance. Severance consists of the application of what is known as the "blue pencil test"; if individual words which make the clause excessively wide are able to be crossed out and the clause still makes grammatical sense, without altering the nature of the obligations, then the courts may be willing to sever the illegal aspects of the clause and enforce the remainder.
[edit] History
To be a valid restraint of trade in the first place, both parties must have provided valuable consideration for their agreement to be enforceable. In Dyer's Case[2] a dyer had given a bond not to exercise his trade in the same town as the plaintiff for six months but the plaintiff had promised nothing in return. On hearing the plaintiff's attempt to enforce this restraint, Hull J exclaimed,
"per Dieu, if the plaintiff were here, he should go to prison till he had paid a fine to the King."
The common law has evolved to reflect changing business conditions. So in the early seventeenth century case of Rogers v. Parry[3] it was held that a joiner who promised not to trade from his house for 21 years could have this bond enforced against him since the time and place was certain. It was also held (by Chief Justice Coke) that a man cannot bind himself to not use his trade generally.
This was followed in Broad v. Jolyffe[4] and Mitchel v. Reynolds[5] where Lord Macclesfield asked, "What does it signify to a tradesman in London what another does in Newcastle?" In times of such slow communications and commerce around the country it seemed axiomatic that a general restraint served no legitimate purpose for one's business and ought to be void. But already in 1880 in Roussillon v. Roussillon[6] Lord Justice Fry stated that a restraint unlimited in space need not be void, since the real question was whether it went further than necessary for the promisee's protection. So in the Nordenfelt[7] case Lord Macnaghten ruled that while one could validly promise to "not make guns or ammunition anywhere in the world" it was an unreasonable restraint to "not compete with Maxim in any way." This approach in England was confirmed by the House of Lords in Mason v. The Provident Supply and Clothing Co.[8]
[edit] Notes
- ^ Nordenfelt v. Maxim, Nordenfelt Guns and Ammunition Co [1894] AC 535
- ^ (1414) 2 Hen. 5, 5 Pl. 26
- ^ Rogers v. Parry (1613) 2 Bulstr. 136
- ^ Broad v. Jolyffe (1620) Cro.Jac. 596
- ^ Mitchel v. Reynolds (1711) 1 P.Wms. 181
- ^ Roussillon v. Roussillon (1880) 14 Ch.D. 351
- ^ Nordenfelt v. Maxim, Nordenfelt Gun Co. [1894] AC 535
- ^ Mason v. The Provident Supply and Clothing Co. [1913] AC 724
[edit] External links
- Practical law: Restraint of trade and business secrets
