| 单词 | Restraint of trade |
| 释义 | 貿易限制 An agreement in which a party agrees with any other party to restrict his or her liberty in the future to carry on trade with other persons not parties to the contract in such manner as he or she chooses: Petrofina (Great Britain) Ltd v Martin [1966] 1 Ch 146. Contracts of employment, together with sales of businesses, form the two principal areas where potentially valid covenants in restraint of trade may be found. A clause restraining certain activities or imposing harsh conditions during employment may be subject to the doctrine of restraint of trade, as well as the more typical clause restraining post-termination activities: Amuse Hong Kong Ltd v Chan Kin Tim, Leslie [1994] 1 HKC 175 (CA). The common law prohibits unreasonable restraints, based on public policy: Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269, [1967] 1 All ER 699 (HL). The onus of proving whether a term is reasonable rests with the person relying on the term. More specifically, the words are used as a term of art covering only those contracts restricting an individual’s freedom to trade which are contrary to public policy: Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd, supra. Restraints of trade are prime facie void unless the restraint can be justified as reasonable in the interests of the parties in that it affords no more than adequate protection to the covenantee while at the same time it is not injurious to the public: Petrofina (Great Britain) Ltd v Martin, supra. Therefore, depending on the interest to be protected, the courts will not enforce any restraint which purports to go beyond the proper scope of the interest being protected: Club Deluxe Ltd v Club Metropolitan Ltd (CACV 152/93, unreported). Even where an interest is the proper subject matter of protection by way of restraint, the courts will refuse to enforce such terms where they are excessive in terms of either duration (Ho Wing-cheong (t/a Hong Leong Securities) v Graham Margot [1991] 1 HKLR 245), scope (Candia Shipping (HK) Ltd v Wong Chiu-wai (HCA 629/86, unreported) or geographical restriction (Sea Wave Hair Designs (WTS) Ltd v Choy Kwong-yiu (HCA 2743/92, unreported). A restraint clause in a contract of employment is enforceable only if it protects an interest of the employer that is considered by the law to be properly protectable, which, as a general rule, will normally mean either trade secrets (Candia Shipping (HK) Ltd v Wong Chiu-wai, supra) or customer connections (Ng Kam Chun (t/a Chun Mou Estate Agency Co) v Chan Wai-Hing, Janet (HCA 3036/92, unreported) but not mere competition (Midland Realty International Ltd v Ip Yuk-wo, Warren (HCA 7680/84, unreported). The criteria for the validity of a restraint of trade clause are stricter in the case of a contract of employment than in the case of a contract for the sale of a business: BSC Buildings Materials Supply Co Ltd v Cheung Chi Hung, Michael [1998] 2 HKC 425. See also Competition law; Contract in restraint of trade; Covenant in restraint of trade; Restrictive trade practices. |
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