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.); at any rate if the disposition, in whatever form, can be taken to show an intention not of discouraging marriage but of making a provision until marriage: Jones v. Jones, 1 Q. B. D. 279. Bad as to personal estate (y) 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. 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 second marriage either of a woman: Newton v. Marsden, 2 J. & H. 356; or of a man: Allen v. Jackson (C. A.) 1 Ch. D. 399. Nor to conditional limitations (as a gift until marriage) in a disposition of either real or personal estate. This result is neither simple nor rational. But 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 (). 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 (a). influence B. An agreement to use influence with a testator in (8) Agreefavour of a particular person or object is void (b). On the ment to other hand, it is well established that a man may validly testator. bind himself or his estate by a contract to make any par (y) For a general account of the doctrine as to personalty, see Morley v. Rennoldson, 2 Ha. 570. (*) See per Jessel, M. R., Bellairs v. Bellairs, 18 Eq. 510, 516. (a) See notes in Sirey & Gilbert on Code Civ. art. 1142, Nos. 11-19. (b) Debenham v. Ox, 1 Ves. Sr. 276. (7) Restraint of trade. General principle. ticular disposition (if in itself lawful) by his own will (c). Such contracts were not recognized by Roman law (d), 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 (e). 7. Agreements in restraint of trade. It would be impossible to give an adequate account of this subject on the plan and within the limits of this book; and it is satisfactory to feel that any attempt to do so is rendered needless by the place already given to it in a work of no small authority (f). 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 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 Hilton v. and for the reasons to be presently stated. Thus an agreeEckersley. ment between 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 (g). It makes no difference (e) De Beil v. Thomson, 3 Beav. 469, s. c. nom. Hammersley v. Baron de Beil, 12 Cl. & F. 45; Brookman's tr. 5 Ch. 182. Whether a covenant to exercise a power of testamentary appointment in a particular way be valid, quære: Thacker v. Key, 8 Eq. 408; Bulteel v. Plummer, 6 Ch. 160; per Brett, L. J., Palmer v. Locke, 15 Ch. D. at p. 300. (d) 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. (e) Savigny, Syst. 4. 142-5. (f) See notes to Mitchel v. Reynolds in 1 Sm. L. C. (g) 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 common 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 criminal law, though not 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: "Primâ 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" (h). It is not an unlawful restraint of trade for several persons carrying on the same business in the same place to agree to divide the business among themselves in such a way as to prevent competition, and provisions reasonably necessary for this purpose are not invalid because they may operate in partial restraint of the parties' freedom to exercise their trade. But a provision that if other persons, strangers to the contract, do not employ in particular cases that one of the contracting parties to whom as between themselves the business is assigned by the agreement, then none of the others will accept the employment, is bad (i). for not restraint. The reasons against allowing agreements in unlimited Reasons restraint of trade are set forth at large in the leading case allowing of Mitchel v. Reynolds (k), and at a more recent date (1837) general were put somewhat 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 enforceable. It would be difficult to maintain that the like agreements between masters, though not named, are not within the meaning of the Act. (h) 6 E. & B. at pp. 74-5. (i) Collins v. Locke (J. C.), 4 App. Ca. 674, 688; Jones v. North, 19 Eq. 426, a case not free from difficulties on other grounds. (k) 1 P. Wms. 181, and in 1 Sm. L. C. For allow restraint. 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 " (1). The second and fifth of these reasons appear to be the really efficient ones both in themselves and as a matter of history. The admission of limited restraints is commonly spoken ing partial of as an exception to the general policy of the law. But it seems 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 (m). Questions as to historical origin of the doctrine. It has been suggested by a learned American writer that in its origin the doctrine was founded on a much more obvious and immediate inconvenience than can be now assigned as the consequence 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 (1) Alger v. Thacker, 19 Pick. 51, 54. (m) James, V.-C. Leather Cloth Co. v. Lorsont, 9 Eq. 345, 353. exercise none-in other words not to earn his living at all (n). One might even go a step farther: for by the statute 5 Eliz. c. 4 (now wholly repealed by the Conspiracy and Protection of Property Act, 1875, 38 & 39 Vict. c. 86), which consolidated earlier Acts of the same kind, not only the common labourer, but the artificer in any one of various trades, was compellable to serve in his trade if unmarried or under the age of 30 years, and not a fortyshilling 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 legal duty-which of course is positively illegal. But it must not be forgotten Absolute that absolute freedom of trade is positively asserted as the freedom of normal state of things always assumed and upheld by the asserted by Coke as common law; wherefore it may be doubted if any artificial old comexplanation is wanted. It was resolved in the Ipswich mon law. Tailors' case (o) that at the common law no man could be prohibited from working in any lawful trade: and it was said that "The statute of 5 Eliz. c. 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 (p) none can be prohibited from working in any lawful trade." And certain ordinances, by which the tailors of Ipswich forbade 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" (q). (n) Parsons on Contracts, 2. 255. nopolies, ib. 876. (9) Cp. the case of the Clothworkers' Co. mentioned ib. 86b. trade |