Commentary

B. The doctrine of restraint of competition

Division AII Contract of Employment
| Commentary

B. The doctrine of restraint of competition

| Commentary

B.     The doctrine of restraint of competition

One of the fundamental freedoms guaranteed by the common law is that an individual should be free to follow their trade or calling without undue let or hindrance. The starting point therefore is that any term in a contract that purports to restrict an individual's freedom to work or to follow their trade or business will be void unless it is reasonable in the circumstances by reference to the interests of the parties concerned and the public interest (Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535, [1891-94] All ER Rep 1, HL; see also Harcus Sinclair LLP v Your Partners Ltd [2021] UKSC 32, [2022] 1 All ER 673, [2021] 3 WLR 598, where the Supreme Court confirmed that, when determining the parties' interests, their (objective) extra-contractual intentions can be taken into account, in addition to the contractual terms themselves). While over time some restraints in the commercial arena have become such a routine part of everyday commercial life so as to no longer be considered undue restraints, meaning they are generally enforceable (Esso Petroleum Ltd v Harper's Garage (Stourport)

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