In Lowe v. Peers (a) a covenant not to marry any person other than the covenantee was held void. A promise to marry nobody but A. B. cannot be construed as a promise to marry A. B. and is thus in mere restraint of marriage: and even if it could, it was thought doubtful whether an unilateral covenant to marry A. B. would be valid, A. B. not being bound by any reciprocal promise (b). Lord Mansfield threw out the opinion (not without followers in our own time) (c), that even the ordinary contract by mutual promises of marriage is not free from mischievous consequences. The decision was affirmed in the Exchequer Chamber, where it was observed that :— "Both ladies and gentlemen frequently are induced to promise not to marry any other persons but the objects of their present passion; and if the law should not rescind such engagements, they would become prisoners for life at the will of most inexorable jailors-disappointed lovers" (d). We do not know of any express decision, but it may be gathered from the analogy of the cases on conditions that a contract not to marry some particular person, or any person of some particular class, would be good unless the real intention appeared to be to restrain marriage altogether; and that a contract by a widow not to marry at all would probably be good (e). The ditions in learning of conditions in restraint of marriage (which always or marriage. almost always occur in wills) does not properly fall within our As to con restraint of subject. Nevertheless it may be worth while to give a summary statement of what is believed to be the result of the authorities. Conditions in restraint of marriage :— If precedent, are with trifling exceptions (if any) valid as to both real and personal estate. If subsequent, General restraint. Good, it seems, as to real estate: (see 1 Atk. 380, n.) Bad as to personal estate (f) or mixed fund (or a fund arising only from sale of realty, semble): Bellairs v. Bellairs, 18 Eq. 510 -and this whether there is a gift over or not. (a) 4 Burr. 2225, in Ex. Ch. Wilm. 364. (b) But of this qu.: for a refusal by A. B. to marry on request within a reasonable time would surely discharge the promisor on general principles. (c) 4 Burr. 2230; per Martin, B. Hall v. Wright, E. B. & E. at p. 788, 29 L. J. Q. B. at p. 49. (d) Wilm. 371. (e) See Scott v. Tyler in 2 Wh. & T. L. C. and notes. (ƒ) For a general account of the doctrine as to personalty see Morley v. Rennoldson, 2 Ha. 570. Particular restraint. Good as to real estate (1 Ro. Ab. 418, X pl. 6); and good as to personal estate if there is a gift over, otherwise not. These rules do not apply to conditions restraining the marriage of a widow (whether of the testator or of any other person): Newton v. Marsden, 2 J. & H. 356 (a) : Nor to conditional limitations (as a gift until marriage) in a disposition of either real or personal estate. The Master of the Rolls observed in a late case (b) that the rule against conditions in restraint of marriage, at first adopted from the ecclesiastical courts on grounds of public policy, has been so modified in its application by courts of equity that it can now be treated only as an arbitrary rule of construction. A glance at the statement above will show, if we may be allowed to say so, the complete justness of the remark. By the law of France promises of marriage are invalid, "comme portant atteinte à la liberté illimitée qui doit exister dans les mariages": nevertheless if actual special damage (préjudice) can be shown to have resulted from non-fulfilment of the promise, the amount of it can be recovered, it would seem as due ex delicto rather than ex contractu (c). ment to B. An agreement to use influence with a testator in favour (8) Agreeof a particular person or object is void (d). On the other hand, influence it is well established that a man may validly bind himself or testator. his estate by a contract to make any particular disposition (if in itself lawful) by his own will (e). Such contracts were not recognized by Roman law (f), and even a gift inter vivos of all the donor's after-acquired property would have been bad as an evasion of the rule: but in the modern civil law of Germany, as with us, a contract of this sort (Erbvertrag) is good (g). 7. Agreements in restraint of trade. It would be impossible (7) Reto give an adequate account of this subject on the plan and straint of within the limits of this book; and it is satisfactory to feel that (a) The exception does not extend to a condition in restraint of the second marriage of a man. Allen v. Jackson, 19 Eq. 631. (b) Bellairs v. Bellairs, 18 Eq. 510, 516. (c) See notes in Sirey & Gilbert on Code Civ. art. 1142. Nos. 11-19. (d) Debenham v. Ox, 1 Ves. Sr. 276. (e) De Beil v. Thomson, 3 Beav. 469, s.c. nom. Hammersley v. Baron de Biel, 12 Cl. & F. 45; Brookman's tr. 5 Ch. 182. (f) Stipulatio hoc modo concepta: Si heredem me non feceris, tantum dare spondes? inutilis est, quia contra bonos mores est haec stipulatio. D. 45. 1. de v. o. 61. (9) Savigny, Syst. 4. 142-5. trade. General any attempt to do so is rendered needless by the place already given to it in a work of no small authority (a). We shall here only give the principles and the short results of the authorities, with some mention of recent decisions. The general rule is that a man ought not to be allowed to principle. restrain himself by contract from exercising any lawful craft or business at his own discretion and in his own way. Partial restrictions, however, are admitted to the extent and for the Hilton v. reasons to be presently stated. Thus an agreement between Eckersley, several master manufacturers to regulate their wages and hours of work, the suspending of work partially or altogether, and the discipline and management of their establishments, by the decision of a majority of their number, is in general restraint of trade as depriving each one of them of the control of his own business, and is therefore not enforceable (). It makes no difference that the object of the combination is alleged to be mutual defence against a similar combination of workmen. The case decides on the whole that neither an agreement for a strike nor an agreement for a lock-out is enforceable by law. The Court of Exchequer Chamber thus expressed the general principle in the course of their judgment :— "Prima facie 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 [his trade] on according to his own discretion and choice. If the law has in any matter [qu. manner?] 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" (c). But it is not an unlawful restraint of trade for a certain number of proprietors or manufacturers to agree not to compete with one another for a public contract, but to make what is really a joint tender in the name of one of them (d). (a) See notes to Mitchel v. Reynolds, 1 Sm. L. C. 356. (b) Hilton v. Eckersley, 6 E. & B. 47, in Exch. Ch. ib. 66; 24 L. J. Q. B. 353, 25 ib. 199. The dicta there leave it doubtful if the agreement would be a criminal offence at com. mon law. By the Trade Union Act, 1871, 34 & 35 Vict. c. 31, ss. 2-5, agreements of this kind between workmen are protected against the (d) Jones v. North, 19 Eq. 426. The case seems not free from difficulties on other grounds. for not The reasons against allowing agreements in unlimited restraint Reasons of trade are set forth at large in the leading case of Mitchel v. allowing Reynolds (a), and at a more recent date (1837) were put some- general what more concisely by the Supreme Court of Massachusetts, who held a bond void which was conditioned that the obligor should never carry on or be concerned in iron founding : "1. Such contracts injure the parties making them, because they diminish their means of procuring livelihoods and a competency for their families. They tempt improvident persons for the sake of gain to deprive themselves of the power to make future acquisitions. And they expose such persons to imposition and oppression. 2. They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as themselves. 3. They discourage industry and enterprise, and diminish the products of ingenuity and skill. 4. They prevent competition and enhance prices. 5. They expose the public to all the evils of monopoly" (b). The second and fifth of these reasons appear to be the strongest and really efficient ones in themselves and to have been so as a matter of history. The first might be applied to almost any bad bargain, and the third and fourth, so far as really admissible, are only partial statements of the fifth. restraint. restraint. The admission of limited restraints is commonly spoken of For allowas an exception to the general policy of the law. But it seems ing partial better to regard it rather as another branch of it. Public policy requires on the one hand that a man shall not by contract deprive himself or the state of his labour skill or talent; and on the other hand, that he shall be able to preclude himself from competing with particular persons so far as necessary to obtain the best price for his business or knowledge, when he chooses to sell it. Restriction which is reasonable for the protection of the parties in such a case is allowed by the very same policy that forbids restrictions generally, and for the like reasons (c). as to It has been suggested by a learned American writer that in its Questions origin the doctrine was founded on a much more obvious and historical immediate inconvenience than can be now assigned as the con- origin of (a) 1 P. Wms. 181,1 Sm. L. C. 356. (b) Alger v. Thacker, 19 Pick. 51, 54. (c) James, V.-C. Leather Cloth Co. v. Lorsont, 9 Eq. 345, 353. the doc trine. sequence of allowing these contracts. It dates from the time when a man could not lawfully exercise any trade to which he had not been duly apprenticed and admitted: so that if he covenanted not to exercise his own trade, he practically covenanted to exercise none-in other words not to earn his living at all (). One might even go a step farther: for by the statute 5 Eliz. c. 4 (since repealed in some particulars) (b) which consolidated earlier Acts of the same kind, not only the common labourer, but the artificer in any one of various trades, was— and apparently still is-compellable to serve in his trade if unmarried or under the age of 30 years, and not a forty-shilling freeholder or copyholder or "worth of his own goods the clear value of ten pounds." An agreement by a person within the statute not to exercise his own trade might therefore be deemed, at any rate if unlimited, to amount to an agreement to omit a Absolute legal duty-which of course is positively illegal. But it must not be forgotten that absolute freedom of trade is positively asserted as the normal state of things always assumed and upheld by the common law; wherefore it may be doubted if any artificial explanation is wanted. It was resolved in the Ipswich Tailors' case (c) that at the common law no man could be prohibited from working in any lawful trade: and it was said that freedom of trade asserted by Coke as old common law. "The stat. of 5 Eliz. 4, which prohibits every person from using or exercising any craft mystery or occupation, unless he has been an apprentice by the space of seven years, was not enacted only to the intent that workmen should be skilful, but also that youth should not be nourished in idleness, but brought up and educated in lawful sciences and trades: and thereby it appears, that without an act of parliament (d) none can be prohibited from working in any lawful trade." And certain ordinances, by which the tailors of Ipswich for bade any one to exercise the trade of a tailor there until he had presented himself to the master and wardens and satisfied them of his qualification, were held void, inasmuch as "Ordinances for the good order and government of men of trades and mysteries are good, but not to restrain any one in his lawful mystery" (e). (a) Parsons on Contracts, 2. 255. noted in the Revised Statutes. (c) 11 Co. Rep. 53a, 54b. (d) So again in the case of Monopolies, ib. 87 b. (e) Cp. the case of the Clothworkers' Co. mentioned ib. 86b. |