OCR A2 Contract Law Special Studies Paper - Restraint of Trade - Mason 16 Marker

This is for the 2013 paper only

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  • Created by: Majid
  • Created on: 02-01-13 13:24

Restraint of Trade - Mason 16 Marker

The case involves the Law on ROT being applied in an employer/employee case. It involved Mason being restained/prevented from working within a certain area/time/activity. It was held to be an unreasonable and therefore void.

The significcance of this case is that it shows a paternalistic attitude in judges in ROT clauses where the weaker party is protected recognising that ROT clauses can at times paralyse the earning capacities of that person.

This can be further seen in the judgement by Lord Moulton where he describes the clause as being penal rather than protective, thereby exposing the weaker bargaining party to 'the anxiety and expense of litigation'. The case is also significant as the lords refused to 'carve out (the void covenant)' i.e. blue pencil when a party in a better bargaining strength delivers a wide clause, infact the lords stated that if the courts were to do this it would be 'pessimi exempli', as the party in a better bargaining position would be "enabled to obtain everything".

The lords have adoted a similar line of reasoning in the case of 'Herbet Morris v Saxelby', where Lord Parker refused to blue pencil recognising the inequality of bargaining powers. Further to this the CofA in 'Attwood v Lamont', afirmed this view and refused to sever when the defendant only conducted business as a tailor.

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