Restraint - Encyclopedia

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RESTRAINT (from "to restrain," Lat. restringere, to hold back, prevent), in law, a restriction or limitation. The word is used particularly in three connexions: 1. Restraint on Anticipation. Although it is a principle of English law that there can be no restriction of the right of alienation of property vested in any person under an instrument, equity makes an exception in the case of a married woman, and has laid down the rule that property may be so settled to the separate use of a married woman that she cannot, during coverture, alienate it or anticipate the income. Restraint on anticipation attaches only during coverture and is therefore removed on widowhood, but it may attach again on remarriage. By the Conveyancing Act 1881, s. 39, a court may however, if it thinks fit, by judgment or order bind a married woman's interest in her property, with her consent, if it appears to be for her benefit, notwithstanding that she is restained from anticipating.

2. Restraint of Marriage

A gift or bequest to a person may have a condition attached in restraint of marriage. This condition may be either general or partial. A condition in general restraint of marriage is void, as being contrary to public policy, although a condition in restraint of a second marriage is not void. A condition in partial restraint of marriage is valid, and may be either to restrain marriage with a particular class of persons, e.g. a papist, a domestic servant, or a Scotsman, or under a certain age.

3. Restraint of Trade

A contract in general restraint of trade is void as being against public policy. In the leading case of Mitchell v. Reynolds, 1711, i Smith L.C., it was laid down that "it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion." It has been suggested that the rule dates from a time when a covenant by a man not to exercise his own trade meant a covenant not to exercise any trade at all - every man being obliged to confine himself to the trade to which he had been apprenticed. However, contracts which are only in partial restraint of trade are good. A contract not to carry on the business of an ironmonger would be bad; but a contract made by the seller of an ironmonger's business not to compete with the buyer would be good. To make such a contract binding it must be founded on a valuable consideration and must not go beyond what is reasonably necessary for the protection of the other party. This is the tendency also of the law in the United States.

See Matthew on Restraint of Trade (1907).

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