Posted by Elizabeth Gore-Jones
on 18 June 2019
Not all restraints of trade are enforceable.
Some matters that may impact the enforceability of a restraint include:
1. in the case of a franchise, did the franchisee operate from the same premises or do the same type of work before entering into the franchise?
2. what is the restraint protecting?
3. will the restraint stop the "restrainee" from earning a living?
4. is it against public policy?
5. can the protected party be protected in some other way?
6. is it reasonable?
7. who do the customers or clients "belong to"?
8. was the restrainee compensated?
9. the drafting of the restraint of trade clause itself.
Restraint clauses can greatly impact decisions parties make about their future.
