Scotland traders and non-traders are alike subject to the Bankruptcy law. In Ireland, however, the Bankruptcy Act, 20 & 21 Vict. c. 60, applies to traders only. Definition of an act of trade. What is a commercial transaction. Who is a trader. FOREIGN LAWS. France.-The French code defines an act of trade to be all purchases of produce and merchandise to be re-sold, whether in the natural state or after having manufactured it, or put in use, or used for the purpose of letting it to hire; every undertaking of manufacture, commission, or carriage by land or by water; every enterprise of agency, business, sale by auction; public spectacles; every operation of exchange, banking, and brokerage; every obligation between merchants, traders, and bankers; and as between all persons bills of exchange and remittances of money from place to place (a).. Germany. By the German code commercial transactions are described to be the purchase, or acquisition by any other means, of goods or other moveables, of public stocks, shares, or other circulating instruments, for the purpose of selling them again, either in their original state or manufactured, or otherwise worked up; any undertaking to furnish such articles; all business of insurance, of transport of goods, and carriage of persons by sea and land; all manufacturing contracts, banking, and other monetary transactions, commission and forwarding agency, publishing, printing, and book trading (b). Buenos Ayres.-Every person who makes a profession of buying and selling goods, or who buys goods to get them manufactured for the purpose of selling them again, is a trader. Merchants are also those who engage in speculations abroad or in inland trade. The law deems an act of trade the purchase of anything with a view to sell it again, or for using it in the same state as it is bought; all operations of exchange and banking; all negotiations in bills of exchange, foreign or inland, or of any other circulating instruments; orders for the manufacture, deposit, or conveyance of goods by sea or land; affreightments of ships, and all operations of shipping, and also agreements respecting salaries of clerks and other persons employed in trade (c). (a) Code de Commerce, §§ 632 and 633. (b) German Code, §§ 271 and 272. (c) Buenos Ayres Code, §§ 2-7. Netherlands.-Commercial operations include commission What are commercial operabusiness; all matters relating to bills of exchange; all business tions. of bankers, brokers, and other agents of trade; and all contracts relating to shipping, including salvage, average, &c. (a). Russia.-Commerce is divided into foreign and inland, wholesale and retail, town and country. Commercial operations include the construction, purchase, refitting, freighting of ships; purchase, sale, carriage, and warehousing of goods; banking, custom-house agencies; all enterprises arising out of contracts for supplying the crown; and all undertakings in connection with shops, buildings, hotels, and baths (b). Branches of trading. SECTION II. OF THE RIGHT TO TRADE. BRITISH LAW. unlawful. Every man may become a trader unless subject to peculiar Right to trade. or personal disqualifications (c). Trading is a civil right of which no one can be deprived. It is illegal for the Crown to grant Monopolies exclusive rights of selling and dealing, except by letters patent as regards new and original inventions (d); and contracts which create or tend to create or secure monopolies are also void (e). This right of every individual to trade is subject to limitations only where the trade is of an obnoxious nature, or where the exclusive right thereon has been secured to other persons by patent or copyright. Exceptions to trading. the rights of For the exercise of some industries an excise licence or a Excise stamped licence is requisite. Such industries are auctioneers, licences. brewers, coffee and tea dealers, paper makers, spirit distillers, rectifiers, and dealers and retailers, tobacco manufacturers and dealers, wine dealers and retailers, attorneys, bankers, convey ancers, pawnbrokers, plate dealers, &c. (f). Clergymen holding any spiritual employment cannot engage Clergymen. in trade, under penalty of forfeiting the goods. They may, (a) Dutch Code, §§ 3, 4 and 5. (b) Russian Code, §§ 1 to 3. (c) 11 Co. Dig. 864 Trade A. 1. (d) 21 Jac. I. c. 3. The case of Monopolies, 11 Co. 6. (e) 3 Inst. 181. 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. 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, Tyrw. 226; Benwell v. Inns, 24 Beav. 307; Mumford v. Gething, 7 C. B., N. S. 305. |