A contractual obligation to be non-negotiable is null and void and unen applicable to the promisor, as it is contrary to public policy of trade promotion, unless the restriction of trade is appropriate to protect the interests of the buyer of a business.  Trade restrictions may also appear in restrictive agreements in employment contracts after termination. The Supreme Court`s 1911 decision in Standard Oil Company of New Jersey v. the United States was based on Taft`s analysis of the rule of reason. In this case, the court found that a treaty violated the Sherman Act only if the treaty “inappropriately” restricts trade, that is, if the treaty has monopoly consequences. According to the Court of Justice, a wider importance would prohibit normal and customary treaties, thus violating freedom of contract. The Court therefore upheld the rule of reason in Addyston Pipe, which in turn stems from Mitchel/Reynolds and the Common Law of Restraints of Trade. One of the related issues is whether, even if a restriction is necessary and incidental, there are means available to achieve the desired result, which are less detrimental. The FTC-DOJ 2000 Guidelines for Collaborations among Competitors states that in determining whether a restriction is “reasonably necessary,” the question is “whether practical, significantly less restrictive means were reasonably available at the time the contract was entered into.”  Most employment contracts include a trade restriction clause. Many people only see it as a standard clause, but it can have serious repercussions on future employment.
The courts have ruled that it is inappropriate to limit trade agreements in cases where they are too vague or too broad. In Hi-Tech Recruitment (Pty) Limited and Others v. Nel and Another, the Tribunal stated that “the restriction is inappropriate where the duration and extent of the area to be applied is outside the agreement itself and/or the restriction is broader than necessary”. Therefore, if the interest in the partisan restriction outweighs the interest in protecting, the restriction is “inappropriate and therefore unenforceable” [Hi-Tech Recruitment (Pty) Limited et al. against Nel and Another  ZALCJHB 250). Consequently, an employer must have a protective interest and the risk of undermining that interest must prevail over the worker`s right to engage in an economic activity. Although the limitation of commercial doctrine is still valid, the current use has been limited by modern and economic competition law laws in most countries. It remains of considerable importance in the United States, as does the Mitchel vs. Reynolds case.
If you are an employer who needs to design your employment contracts and evaluate your trade restriction clause, or if you are a worker who has to sign such documents, talk to an experienced labour lawyer first. Our employment law team is competent and experienced and can advise you on the best way to proceed. In other cases, the question was raised as to whether deference was necessary, in view of the resulting harm, and whether it was complementary to the achievement of something not worth recognizing. In a recent case, a court refused to justify a credit card issuer`s attempt to restrict competition, which was described as reasonably necessary to promote “loyalty” and “cohesion.”  As necessary and necessary for what remains so controversial, questions about the teaching of Mitchel v. Reynolds. Even if, for example, a restriction within the meaning of Mitchel and Addyston Pipe is necessary and complementary, it may constitute an inappropriate restriction on trade if their anti-competitive effects and the resulting harm to the public interest outweigh their advantages. Thus, in the Polygram case, Ginsburg J. stated that to be a valid trade restriction, both parties must have provided valuable consideration for the execution of their agreement. . .