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The Green Bag

of the several parties whose freedom of trade may be diminished by the per formance of the covenant. Covenants in restraint of trade may also be divided into (1) those entered into by an indi vidual, (2) those entered into by a com bination, (3) those entered into by sev eral individuals for the formation of a combination or by one person in aid of a combination. "A covenant not to trade was illegal at common law as against public policy when the restraint imposed by the per formance of the covenants was unreason able. The objections on the score of public policy may be reduced to four heads. These are (1) effect on the cove nantor, (2) effect on the covenantee, (3) effect on competitors, (4) effect on per sons buying from or selling to the covenanatee, and in each case we must con sider (1)) the case of a covenant to abstain from trade, (2) the case of a covenant merely to trade in a particular way. The objection that the covenantor was in jured by the performance of a covenant to abstain from a particular trade is no longer of any force when occupations may be changed with facility. This ob jection never did apply to a covenant merely to trade in a particular manner. The performance of the covenant is in each case distinctly advantageous to the covenantee, as he is giving a considera tion for it. Competitors are benefited in each case because the performance of the covenant to that extent diminishes competition. The persons buying from or selling to the covenantee are injured by the removal of the customer, thus diminishing their freedom of trade by narrowing the market. They have no ground to complain of such removal unless the covenants are taken by some form of combination, which thereby acquires control of the buying or selling. The law cannot interfere except in the

case of a combination without repudiat ing the principle favoring freedom of individual action. There is little danger under modern conditions of an individual acquiring a monopoly by taking cove nants in restraint of trade. The other cases of covenants in restraint of trade are those between buyers and sellers, which, in the case of individuals, appear to be unobjectionable. "When we consider the subject of com bination, we must recognize the dis tinction between individual action and associated action. So far as the law of restraints on trade is concerned, the right of association is regarded as a peculiar privilege, the exercise whereof may lead to results injurious to individuals and to the public, and therefore to be circum scribed and jealously dealt with by the law. The argument that what one man may lawfully do several together may do is not sound, because the law regards the potency of numbers, and the prin ciple as to the lawfulness of an individual act cannot be carried to its logical con clusion because of the counter principle as to the unlawfulness of associated action. The two principles are logically inconsistent, and the most that the law can do is to strike a rough balance be tween them. A combination in restraint of trade is where two or more individuals conduct their respective buying or selling, as the case may be, with respect to one or more or all of the elements we have noticed, according to some common rule which they have voluntarily adopted. A combination may appear in several forms, which are (1) two or more in dividuals buying or selling separately in pursuance of some contractual obli gation existing between them; (2) a partnership buying or selling; (3) an association; (4) a corporation; (5) a trust. The same principles probably apply to all these forms. In practice,