Right of trading in France. Obnoxious industries. State monopolies. Freedom of industry in the United States. Who cannot trade. Right of trading. Monopoly of corporations. Right of trading. however, be members of partnerships of more than six persons (a). FOREIGN LAWS. France.-Before 1789 industrial professions were subjected to regulations which made them accessible to a limited number only. Since then, however, a general freedom of industry has been introduced, and every person is allowed to engage in whatever trade or profession he pleases. But magistrates, advocates, solicitors, and ministers of religion, brokers, consuls, public functionaries, and members of the civil service and military profession, cannot engage in trade. Although such functionaries are prohibited from trading, if they do engage in it, they acquire the character of traders, and are subjected to all the consequences flowing from it. The state has the right to prevent the establishment of industries injurious to public order, health, and security. A special permission is necessary for the foundation of such establishments, which is only granted under certain conditions. Certain industries, such as the manfacture of tobacco and gunpowder, are in France monopolies of the state. Other industries, such as book-selling and printing, can only be carried on with the licence of the Government. United States of America.-The same rights and freedom to trade exists in America as in the United Kingdom. Brazil. The President and commanders and all officers of the army and navy, magistrates, judges, clergymen, and bankrupts without certificate, are prohibited from trading (b). Buenos Ayres.-Every person who has the free administration of his property is able to be a trader. Any one who is unable to contract is also incapacitated from trading (c). Denmark. Trade is monopolised by corporations, but foreign traders have full liberty to trade. Italy. The right of trading is recognised throughout Italy. (a) 1 Vict. c. 10. (b) Brazil Code, §§ 2 and 3. (c) Buenos Ayres Code, §§ 8 and 9. (d) Portuguese Code, § 13. SECTION III. RESTRAINTS OF TRADE BY VOLUNTARY AGREEMENT. TORY OBSER All kinds of restrictions of trade, whether voluntary or invo- INTRODUC luntary, have always been treated in this country with great VATIONS. suspicion. Not only is it illegal and against the policy of the common law to concede to particular persons the monopoly or the sole exercise of any known trade, but care is taken to give every encouragement to trade and honest industry, and to secure in every possible way the liberty of the subject. Hence it is that though a man may, upon a valuable consideration, by his own consent and for his own profit, give over his trade and part with it to another in a particular place, the law will not permit any one to restrain a person from doing what his own. interest and the public welfare require that he should do. Any deed, therefore, by which a person binds himself not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, is void. This principle was established as early as during the reign of Henry V., when a weaver, in a moment of passion against his trade, gave a bond to carry it on no more. The case having been brought before the court, Mr. Justice Hall, in a violent burst of indignation, exclaimed that the obligation was void, inasmuch as the condition was against law. In the leading case on the subject, Mitchell v. Reynolds, 1 P. W. 190, reported in the first volume of Smith's Leading Cases, p. 203, the reasons of the prohibition of such voluntary restraints are stated to be:-The evil which may arise from them to the party himself by the loss of his livelihood and the subsistence of his family; and to the public by depriving it of a useful member. Also the great abuses these voluntary restraints are liable to; as, for instance, from corporations who were formerly labouring for exclusive advantages in trade, and to reduce it in as few hands as possible; as likewise from masters who are apt to give their apprentices much vexation on this account, and to use many indirect practices to procure such bonds from them, lest they should prejudice them in their custom when they come to set up for themselves; and, lastly, that in many instances they can be of no use to the obligee, which holds in all cases of general restraints throughout England; for what does it signify for a tradesman in London what another does in Newcastle? Leading case. Mitchell v. and surely it would be unreasonable to fix a certain loss on one side without any benefit to the other. Nevertheless, instances may occur where such contracts may be useful and beneficial; for example, an old man, finding himself under such circumstances either of body or of mind as that he is likely to be a loser by continuing his trade, might deem it better for him to part with it for a consideration, that by selling his custom he may procure to himself a livelihood, than risk losing it altogether by trading any longer. Since the early cases on the subject, the law on contracts for restraints of trade has been somewhat altered. It was formerly held that the contract was void unless the consideration was adequate to the restriction; but in Hitchcock v. Coker, 1 A. & E. 138, it was held, that the Court had no judicial perception of the ratio of the consideration to the restriction, and that provided there be a legal consideration of value, the contract must be enforced without reference to the quantum of that value. Still the reasonableness of the restriction as to the area of exclusion, in relation to the trade or occupation of the contracting parties, is rigorously watched. If the restriction far exceeds reasonable limits, it would not be enforced (Benwell v. Inns, 24 Beav. 307), though a general restriction as to time will not of itself constitute a sufficient ground to avoid it. And though in the old cases such contracts were presumed prima facie to be bad, now they are valid unless the restriction imposed is greater than the interest of the plaintiff requires. BRITISH LAW. An agreement for a partial and reasonable restraint of trade upon an adequate consideration is binding (a); but where the restraint is larger and wider than the protection of the party with whom the contract is made can possibly require, it is considered as unreasonable in law, and the contract which would enforce it would be void (b).` An agreement for restraint of trade not limited as to space, or not confined to any particular district or locality, would be (a) Rannie v. Irvine, 7 Man. & G. (b) Mitchell v. Reynolds, 1 Smith's lan v. May, 11 M. & W. 653; Tallis v. Tallis, 1 E. & B. 391; Elves v. Croft, 10 C. B. 241; Young v. Timmins, 1 Tyrw. 226; Benwell v. Inns, 24 Beav. 307; Mumford v. Gething, 7 C. B., N. S. 305. void (a); but a general restriction as to time would not of itself unlimited reavoid the contract (b). That an agreement for restraint of trade may be valid, it must set forth the cause or consideration for the restraint, and the circumstances which rendered such a restraint reasonable; and it is for the Court, and not for the jury, to determine, the reasonableness or unreasonableness of the contract (c). All contracts for mutually abstaining from trade, or taking away the freedom of action on the part of the individual to carry on trade, are void (d). Agreements for the sale of patents of invention and secrets of trade are not void, though unlimited as to time and space (e). FOREIGN LAWS. France.-A contract for restraint of trade would be invalid under the section 1131 of the Civil Code, which avoids all obligations either based on an unlawful consideration or contrary to public order. Whatever is contrary to what the Legislature holds as a public good is illegal. United States of America.-All contracts which restrain the exercise of a man's talent in trade are detrimental to the commonwealth, and therefore void (ƒ). A contract prohibiting the pursuit of any trade or employment throughout the State of New York would be regarded as a contract in total restraint of trade within the rule of the common law. straint void. Condition to the validity of the agree ment. Agreement for staining from mutual ab trade void. Agreement for sale of patents valid. SECTION IV. RESTRAINTS OF TRADE FOR WANT OF UNDERSTANDING. MINORS. TORY OBSER In the primitive state of society men were divided into INTRODUCimpuberes and puberes, a distinction based on the physical VATIONS. phenomena of man, the acquisition of the power of speech and procreation; speech being the condition of personal liability; procreation the essential condition of marriage. To this Roman law on material distinction another was added by jurisprudence, puberes and impuberes. founded on the moral rather than on the physical development of man. The period of impuberty was divided into two periods the first ending with the acquisition of speech, and called infancy; the second ending with the attainment of puberty. And the latter was also divided into two-the period nearest infancy, and the period nearest puberty; seven years of age being the dividing point. Puberty, though differing with each individual, was fixed by jurists at twelve for females, and fourteen for males. But as fourteen years of age were considered insufficient to enable a man to acquire the uncontrolled management of his affairs, a third period was introduced for the purpose, and twenty-five years of age was fixed as the time when all the legal disabilities of minors should cease. Accordingly, the infant had no capacity whatever, because he could not speak. From the age of infancy to seven years of age, all the acts of the minor were void, and he could only act by his guardian. From seven to fourteen, though he could act for himself, the guardian must have been joined with him to enforce his acts. And from fourteen to twenty-five a minor could bind himself, but if he had been wronged, he or his guardian could claim restitution. Scotch law on infancy. Laws of foreign countries. These distinctions of the Roman law still prevail in many systems of jurisprudence. In Scotland two periods are recognised that of pupillarity, or a state of absolute incapacity, extending from birth to fourteen years of age in males, and twelve in females; and that of minority, or a state of limited capacity, from those ages to twenty-one. During the latter period a minor is held capable of consent, but of inferior judgment or discretion, requiring the protection of the law. The law of France is the same as in Scotland. But in England a minor under twenty-one years of age cannot bind himself, except for his education and necessaries. This complete disability of minors is not even modified by the law relating to emancipation, which prevails everywhere on the Continent. In France a minor may be emancipated at fifteen years of age complete, by the simple declaration of his father or mother; and, if without father or mother, at eighteen, if the conseil de famille think him capable. If an emancipated minor engages in trade, he is deemed a major for his acts in such a trade and has full right |