Expositions on the Restraint of Trade Threshold

Thorpe, DE

Expositions on the Restraint of Trade Threshold

Thorpe, DE

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Publisher:: LexisNexis Butterworths
Publication Type:: Journal Article
Citation:: Journal of Contract Law, 2012, 29 (2-3), pp. 208 - 230
Issue Date:: 2012-01

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Field	Value	Language
dc.contributor.author	Thorpe, DE https://orcid.org/0000-0002-3649-1724	en_US
dc.date.issued	2012-01	en_US
dc.identifier.citation	Journal of Contract Law, 2012, 29 (2-3), pp. 208 - 230	en_US
dc.identifier.issn	1030-7230	en_US
dc.identifier.uri	http://hdl.handle.net/10453/23350
dc.description.abstract	This article examines the legal basis of the restraint of trade `threshold tests formulated by the House of Lords in Esso Petroleum v Harpers 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.	en_US
dc.publisher	LexisNexis Butterworths	en_US
dc.relation.ispartof	Journal of Contract Law	en_US
dc.title	Expositions on the Restraint of Trade Threshold	en_US
dc.type	Journal Article
utslib.citation.volume	2-3	en_US
utslib.citation.volume	29	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	closed_access
pubs.consider-herdc	true	en_US
pubs.issue	2-3	en_US
pubs.volume	29	en_US

Abstract:

This article examines the legal basis of the restraint of trade `threshold tests formulated by the House of Lords in Esso Petroleum v Harpers 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.

Please use this identifier to cite or link to this item:

http://hdl.handle.net/10453/23350