Footnote:
In: Journal of Contract Law, 29, 209-230
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments 2012 erstellt
Description:
This article examines the legal basis of the restraint of trade ‘threshold tests' formulated by the House of Lords in Esso Petroleum v. Harper's Garage and affirmed by the High Court of Australia in Peters (WA) Ltd v. Petersville Ltd. The purpose of these tests is to relieve a covenantee from the ‘burden of going into evidence' to justify a restraint of trade. Commentary has often pointed to the inconsistencies in application of the various threshold tests. This article considers the origins of these tests to explain why these inconsistencies occur and in so doing suggests that the tests lack a proper grounding in law and logic and, as such, should be abandoned. Since at least the 15th century the restraint of trade doctrine has permitted covenantors aggrieved at wrongly being excluded from trade to challenge the validity of a trade restraint despite their contractual assent. It is of no small consequence that covenantors should be denied by application of the threshold tests access to the restraint of trade doctrine and deprived of the opportunity to argue as to ‘reasonableness' under the Nordenfelt approach