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Restrictive covenants

Restrictive covenants

Restrictive covenants limit the ability of a seller or employee to compete in the future with the firm with which they are doing business or currently employed. Restrictive covenants are most frequently found in CONTRACTs for the sale of businesses and professional practices and in EMPLOYMENT contracts. Managers and employees with business KNOW-HOW are often required to sign contracts with restrictive covenants as a condition of employment. Limitations stipulated in contracts often concern time, geographic area, and subject matter. COMMON LAW, RESTRAINTS OF TRADE doctrine, and statutes employing a rule of reason analysis traditionally govern restrictive covenants. Restrictive covenants are generally enforceable if they are reasonable as to time, geographic range, and subject matter. However, covenants not to compete are considered by courts relative to the individual market circumstances, and as such they make each situation unique. For example, the Connecticut Supreme Court found that restrictive covenants must be reasonable within the context in which they appear. In the sale of a barbershop, a covenant restricting the seller from establishing another barbershop for five years in the same city was considered reasonable. The Connecticut Supreme Court also determined that covenants not to compete found in employment contracts must meet certain requirements to be binding and valid. First, the covenant must be limited with regard to time and place. Second, it must be reasonable in the sense that it should afford only fair protection to the interests of the party seeking the covenant and not be so restrictive that it might interfere with the public’s interests. The court found that a covenant precluding an employee from pursuing an occupation was unenforceable. The court did find a contract restricting an employee from management of a specific type of business anywhere in the state for five years was reasonable and enforceable. But covenants in employment contracts covering areas in which the employer does not do business or is unlikely to do business are likely to be held unreasonable.

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