Title Conditions in Restraint of Trade

John A Lovett

in Mixed Jurisdictions Compared

Published by Edinburgh University Press

Published in print October 2009 | ISBN: 9780748638864
Published online March 2012 | e-ISBN: 9780748651443 | DOI:
Title Conditions in Restraint of Trade

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This chapter enquires whether title conditions can prohibit a burdened property owner from operating a theatre, a seafood restaurant, a public house, an optician's shop, or even an outpatient surgical and diagnostic centre, that competes with a similar business operated on a benefited property? Can they require a burdened owner to engage in some kind of trade with a benefited proprietor or to construct some facility that will benefit the business interests of the person who owns the benefited property? Many legal systems permit these kinds of arrangements as a matter of contract law — as long as the specific agreement in question is not broad enough to violate some external principal of public, anti-competition law. But the more difficult question — and the one that simmers at the centre of this chapter — is whether such an agreement can ‘run with the land’ and be enforced by and against singular or particular successors of the original parties. In other words, can a title condition that imposes a restraint of trade on the burdened property for the sole purpose of conferring a commercial advantage on the benefited proprietor be treated as property? If the answer to this question is affirmative, then a powerful and perhaps new kind of property interest has emerged in Scottish and Louisiana law, one that tells us something significant about the nature of property law itself in these two mixed jurisdictions.

Keywords: title conditions; property owners; competition; contract law; property law; Scotland; Louisiana

Chapter.  17383 words. 

Subjects: Comparative Law

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