Trading in UK Law

Leading Cases
  • Esso Petroleum Company Ltd v Harper's Garage (Stourport) Ltd
    • House of Lords
    • 23 February 1967

    As the whole doctrine of restraint of trade is based on public policy its application ought to depend less on legal niceties or theoretical possibilities than on the practical effect of a restraint in hampering that freedom which it is the policy of the law to protect.

    Restraint of trade appears to me to imply that a man contracts to give up some freedom which otherwise he would have had. A person buying or leasing land had no previous right to be there at all, let alone to trade there, and when he takes possession of that land subject to a negative restrictive covenant he gives up no right or freedom which he previously had.

    If one who seeks to take a lease of land knows that the only lease which is available to him is a lease with a restriction then he must either take what is offered (on the appropriate financial terms) or he must seek a lease elsewhere. No feature of public policy requires that if he freely contracted he should be excused from honouring his contract.

    It was the sterilising of a man's capacity for work and not its absorption that underlay the objection to restraint of trade. This is the rationale of Young v. Timmins 148 E.R. 1446 where a brass foundry was during the contract sterilised so that it could only work for a party who might choose not to absorb its output at all but to go to other foundries, with the result that the foundry was completely at the mercy of the other party and might remain idle and unsupported.

    When a contract only ties the parties during the continuance of the contract, and the negative ties are only those which are incidental and normal to the positive commercial arrangements at which the contract aims, even though those ties exclude all dealings with others, there is no restraint of trade within the meaning of the doctrine and no question of reasonableness arises.

    One may express the exemption of these transactions from the doctrine of restraint of trade in terms of saying that they merely take land out of commerce and do not fetter the liberty to trade of individuals; but I think one can only truly explain them by saying that they have become part of the accepted machinery of a type of transaction which are generally found acceptable and necessary, so that instead of being regarded as restrictive they are accepted as part of the structure of a trading society.

  • Director General of Fair Trading v First National Bank Plc
    • House of Lords
    • 25 October 2001

    Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 of the regulations.

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Books & Journal Articles
  • Insider trading – unsolved issues
    • Nbr. 26-3, July 2019
    • Journal of Financial Crime
    • 786-792
    Purpose: This paper aims to show that, despite the development of prevention mechanisms for banks, undetected insider trading remains highly feasible. It, thereby, highlights that the current anti-...
  • The Global Trading System
    • Nbr. 57-4, December 2002
    • International Journal
  • Cross‐Border Insider Trading
    • Nbr. 8-3, January 2001
    • Journal of Financial Crime
    • 254-263
    Some 40 years have now passed since the US Securities and Exchange Commission (SEC) began seriously to attack the problem of insider trading in its seminal Cady, Roberts decision. Since then, a com...
  • The illiberal trading state
    • Nbr. 50-1, January 2013
    • Journal of Peace Research
    Liberal systemic theory is built on the assumption that the system’s dominant configuration is a Kantian confederation of major powers. In addition to being a democratic cluster, the liberal core i...
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Law Firm Commentaries
  • Charities - Trading Issues For Trading Companies
    • Mondaq UK
  • FCA reviews commodities trading
    • JD Supra United Kingdom
    FCA has published a thematic review of commodities trading (CT) in September’s Market Watch. The review has taken place following recent changes in the structure of the CT markets. It focuses on fi...
  • Covid-19: Wrongful Trading
    • JD Supra United Kingdom
    For directors of companies facing financial difficulties, the wrongful trading regime can be front of mind, given the exposure to risk of personal liability.
  • UK Emissions Trading Scheme markets
    • LexBlog United Kingdom
    On 10 May 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published a new webpage explaining the supply of allowances in the UK Emissions Trading Scheme (UK ETS) in the ear...
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