Restraint of Trade and Freedom

This chapter argues that on the republican view of contract law, freedom resides not in absence of interference per se (the liberal position), but rather in the absence of arbitrary interference or dominium by others. It claims that the restraint of trade doctrine protects this kind of republican freedom by preventing the promisee from using contract law to constitute a relationship of dominium over the promisor. Such contracts or contract clauses involve a subversion of the true purpose of contract law which is to structure intrinsically valuable relationships between the parties based on trust, equality, and cooperation. To explain the invalidity of clauses in restraint of trade, it is necessary to reach beyond promise to this constitutive purpose.