The faculty of scruples has generally been recognized as the absence of judicious choice on the part of one of the parties, as well as contractual conditions that are unduly favorable to the other party. The existence of a judicious choice in a given case can only be determined by taking into account all the circumstances of the transaction. In many cases, the relevance of the election is denied by a gross inequality of bargaining power. The manner in which the contract was concluded is also relevant for that consideration. Given their obvious formation or absence, did each party have a reasonable opportunity to understand the contractual terms or were the important terms hidden in a maze of fine print and minimized by fraudulent sales practices? Normally, anyone who signs an agreement without full knowledge of it can take the risk of having entered into a unilateral transaction. But if a party with little bargaining power and therefore little real choice signs a commercially unreasonable treaty with little or no knowledge of its terms, it is unlikely that its consent, or even an objective manifestation of its consent, was ever given to all the conditions. In this case, the usual rule that the terms of the agreement should not be called into question should be dropped and the court should consider whether the terms of the contract are sufficiently abusive for performance to be upheld. A first common area where a trade restriction problem may arise is the sale of a business. Regina sells her lingerie shop in Victoria and promises not to create a competing boutique in town for a year. Victoria Regina`s goodwill (the fact that customers are used to shopping) as well as her building and inventory, there is clearly a property interest that needs to be protected. And the geographical restriction (“in the city”) is reasonable when the store does business there. But if Regina had agreed not to operate a store in the city or to wait ten years before opening a new store, or not to open a new store somewhere a hundred miles from the city, she could avoid the non-compete conditions of the contract, because the restriction in any case (nature, duration, and geographical area of detention) would have been wider than necessary, to protect Victoria`s interests. Whether the courts maintain an agreement not to compete depends on all the circumstances, as the Connecticut hairdresser found in section 12.5.3 “Impitoyability.” 1.
For reasons of public policy, an undertaking or other duration of an agreement is not applicable if the law provides that it is not enforceable or that, in the present circumstances, the interest in applying it by public policy outweighs the application of such provisions. If a non-compete obligation is found to be illegal, courts can take one in three courses to remedy it. A court may refuse to enforce the entire agreement, which now frees the worker from competition. The court could only remove the unreasonable part of the agreement and enforce the rest (the “blue pencil” rule… . .