The deference of trade doctrine is based on the two concepts of prohibition of agreements that are contrary to public policy, unless the relevance of an agreement can be demonstrated. A trade restriction is simply a kind of agreed provision that aims to curb the trade of another. In Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co, for example, a Swedish arms inventor, by selling his business to an American arms manufacturer, promised that he would "not manufacture weapons or ammunition anywhere in the world and would in no way compete with Maxim." The consequences are manifested in the recent dispute between Pepkor (formerly Steinhoff Africa Retail) and Tekkie Town shoes. The fine article24 states: "Pepkor says that he has succeeded in showing the court that he has a protective interest in limiting the trade rules that apply to Mr. Tekkie`s founders." Any activity that prevents a business from doing business, as would normally be the case, is called commercial restriction. While some trade restrictions are illegal, others are legal. For example, it is legal to ask your employees to sign non-competitors if the agreements are appropriate and applicable in your state. The Supreme Court`s decision of the Standard Oil Company of New Jersey against the United States in 1911 was based on an analysis of Taft`s reason rule. In that case, the Court found that a contract contravened the Sherman Act only if the treaty "unduly" limited trade, i.e. where the treaty had monopolistic consequences. According to the Court, a broader meaning would prohibit normal and usual contracts, thus violating contractual freedom. Accordingly, the Court approved the motivational rule set out in Addyston Pipe, which in turn stems from Mitchel v. Reynolds and the common law of trade restrictions.
The party who argued that the restriction of the trade agreement is contrary to the public interest should convince the court that the agreement is unfair and unenforceable. If you are an employer who needs to develop your employment contracts and evaluate your trade clause, or if you are an employee who must sign such documents, speak to an experienced labour lawyer first. Our labour and labour law team is competent and experienced and advises you on the best way to proceed. But suppose Sally, the hairdresser, is employed by Harry`s Hairy Salon, with a three-month limit on the commercial clause for the geographic area of 5 km from the workplace. This would most likely apply, as hairdressers usually have a relationship with people who go to them for their haircuts.