Trade in United Kingdom

Meaning of Trade

The following is an old definition of Trade [1]: Generally, equivalent to occupation, employment, or business, whether manual or mercantile; any occupation, employment, or business carried on for profit, gain, or livelihood, not in the liberal arts or in the learned professions. The business or occupation which a person has learned and carries on for procuring subsistence, or for profit; particularly, a mechanical employment, distinguished from the liberal arts and learned professions, and from agriculture. In its broadest signification, includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally. In the expression ” implements of a debtor’s trade ” the reference is to the business of a mechanic, – carpenter, blacksmith, silversmith, printer, or the like. Trader; tradesman. Primarily, one who trades. But “tradesman” usually means a shopkeeper. Trader. One who buys and sells goods; ” one who makes it his business to buy merchandise, or goods and chattels, and sell the same for a profit.” One who sells goods substantially in the form in which they are bought. Any general definition would fail to suit all cases; each case has its peculiarities. In England, applied to small shopkeepers; in the United States, rarely to persons engaged in buying and selling, generally to mechanics and artificers of every kind,whose livelihood depends upon the labors of their hands. Tradesman. Cannot be restricted to mean traders, in the large sense of our bankrupt laws. Most often synonymous with shop- keeper. Was imported from the English bankrupt act, and refers to a smaller merchant or shopkeeper. See Merchant; Peddler. An agreement in general restraint of trade is illegal and void. An agreement which operates merely in partial restraint is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint must not be larger than is required for the necessary protection of the party with whom the contract is made. The application of the rule is somewhat difficult. A contract not to exercise a trade in a particular State is generally held to be invalid, on the ground that it would compel a man to transfer his residence and allegiance to another State in order to pursue his vocation. The cases are to be judged according to their circumstances. The grounds of the rule are, further: the injury to the public by being deprived of the restricted party’s industry; and the injury to the party himself by being prevented from supporting himself and his family. Both these evils occur when the contract is general – not to pursue the trade at all, or in the entire country. But if neither evil ensues, and the contract is founded on a valuable consideration and a reasonable ground of benefit to the other party, it is free from objection. A stipulation by a vendee of any trade, business, or establishment, that the vendor shall not exercise the same trade or business, or erect a similar establishment within a reasonable distance, so as not to interfere with the value of the trade, business, or thing purchased, is reason- able and valid. So also is a stipulation by a vendor of an article to be used in a business in which he is himself engaged, that it shall not be used within a reasonable region or distance, so as not to interfere wfth his business. The point of difficulty is to determine what is a reasonable distance. This must depend upon the circumstances of the particular case. If the distance be such that the business cannot possibly be affected, the stipulation is unreasonable. It was one of the most ancient rules of the common law that all contracts in restraint of trade were void. This was settled law in England as early as 1415, and its courts would not then tolerate the least infraction of the rule. It was enforced with severity, and doubtless grew out of the law of apprenticeship, under which no one could earn a livelihood at any trade until after long service, and then he must continue in the one adopted or have none. For two hundred years the rule existed, without exception, that all contracts in restraint of trade were void. It was qualified, however, as the law of apprenticeship broadened; and a distinction was then drawn by the cases of Broad v. Jollyfe, 3 Cro. Jac. 596 (1623), and Mitchel v. Reynolds, 1 P. Wms. 181 (1711), between a general and a limited restraint of trade. Other decisions followed, until it became the settled English rule that while a contract not to do business anywhere is void, one stipulating not to do so in a particular place, or within certain limits, is valid. This has ahyays been the rule in this countiy, and the wisdom, of it cannot be doubted. It is eminently suited to the genius of our institutions. It prevents building up monopolies and the creation of exclusive privileges. Contracts in general restraint of trade produce them; they tend to destroy industry and competition, thus enhancing prices and diminishing the products of skill and energy; they impair the means of livelihood and injure the public, by depriving it of the services of men in useful employments. This reasoning, however, does not apply to such contracts as impose a special restraint; as, not to cari’y on trade at a particular place, or with certain persons, or for a limited reasonable time. Indeed, a particular trade may be promoted by being limited for a short period to few persons, and the public benefited by preventing too many from engaging in the same calling at the same place. If, therefore, the limitation be a reasonable one, it will be upheld. A contract not to engage in a business, directly or indirectly, for five years, may not extend to isolated acts, or to occasional services voluntarily rendered in good faith for the accommodation of another; nor will it include a subordinate employment not affecting the management of the business nor directly influencing custom. A covenant to retire from business ” so far as the law allows ” was held to be too vague to be enforced. See Art, 3; Business: Combination; Condition; Distress; Manufacture; Monopoly; Tools. See especially Trust. Trade-dollar. See Coin.Trade-fixture. See Fixture. Trade-talk. See Commendatio, Simplex.

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Notes and References

1. Concept of Trade provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)