534 / 736
statement of the considerations which grounded
the Minister's decision to grant or withdraw the
exemption. The statutory requirement of parti
culars of any grant or withdrawal was wider than
particulars of the class or kind of business exempted.
The court was satisfied that the plaintiffs had
not shown that any provision of the Act was invalid
save for the words "any particular business or" in
Section 4 (1) and the words "a particular business
of" in Section 4 (2). The plaintiffs would have a
declaration that those provisions were invalid hav
ing regard to the provisions of the Constitution.
Save as to those declarations, the appeal of the
Attorney-General would be allowed.
[The'Irish Times,
28 July 1970.]
CONTRACT
Restrictive Tie of Twenty Years Invalid
The first defendant, Condell, was the owner of a
garage in Portlaoise and wanted additional capital.
The plaintiffs are distributors of "Mex" petrol.
Finally a "loan agreement" and a "solus agree
ment" were signed in September 1959; the two
agreements contained several similar clauses. By
the loan agreement, the plaintiff advanced £4,400
to assist the defendant in his business; this sum
was to be repaid by annual instalments of £220
over a period of twenty years without interest.
There was a clause that "the dealer will not sell
or transfer his said business or convey or assign or
part with the possession of the said premises to
any third party without first obtaining the written
consent of the company". The solus agreement was
to remain in force for twenty years from 1 Sept.
1959. The dealer undertook to purchase from the
company at least 70,000 gallons of motor spirit per
annum. In case the actual purchase falls short of
this figure, then the dealer is to make it good in
the following year. There was also a claim to keep
the premises in a clean and smart condition. It
was also provided, that in the event of a sale with
the consent of the plaintiff, the new purchaser had
to undertake to be bound by the same terms.
Condell's hopes of selling 70,000 gallons of
petrol per annum were far from realised. In the
first year, he sold 4,500 gallons; in the second
year, he sold 7,000 gallons. In January 1967 the
plaintiffs sent a notice to Condell to terminate his
agreements with them from 28 February 1967
because he did not purchase the 70,000 gallons of
petrol stipulated. In May 1965 plaintiffs became
aware that Condell was considering a sale of iis
business and drew his attention to the agreement,
and stated that they would not give any consent
to the purchase until full particulars about the
purchaser had been furnished. It was then pointed
out that Condell wished either to redeem the loan,
or to allow it to continue. The plaintiffs stated
that they would have to withhold consent until the
new purchaser, Hennessy, had signed similar agree
ments with them and that they wished to obtain a
definite reply before 23 August 1965.
At an application for an interlocutory injunction,
the defendants relied on the case of
Esso Petroleum
v Harpurs Garage
(1966), I AER 725.
In December 1961 the Restrictive Trade Prac
tices (Motor Spirit) Order, 1961, was made, and
this was duly confirmed by the Restrictive Trade
Practice (Confirmation of Orders) Act, 1962. A
solus agreement was specifically defined in the
order, and a solus agreement of more than five
years duration was declared invalid after the 1962
Act has been passed. There was also a clause
whereby a mortgage should not contain any provi
sion whereby the retailer undertook to purchase
motor spirit from the wholesaler for a longer period
than five years.
The plaintiffs tried to contend that the tie for
twenty years was a reasonable restraint of trade—
but no evidence to justify this has been given, and
Harpur's case held this tie was unreasonable. These
clauses were invalid as an unreasonable restraint of
trade. It also follows that the plaintiffs are not
entitled to a declaration that Condell is not entitled
without their consent to sell or transfer his busi
ness, nor are they entitled to restrain him from
doing so. Mr. Condell is fully entitled to redeem
the amount outstanding on the loan. Plaintiff's
action dismissed.
[McMullan Bros. Ltd. v Condell and Hennessy;
Kenny J.; Unreported; 30 January 1970.]
COSTS
Plaintiff put on terms pending decision of Minister
Plaintiff passenger obtained judgment against
first defendant for £3,701-5-0 and costs, and
against the second defendant for £4,840-10-0 and
costs in respect of injuries sustained in a collision
between two cars. The second defendant dulv paid
the sum of £4,840-10-0 and costs, but the plaintiff
was unable to recover anything from first defen
dant, as the sherriff made a return of no goods.
The first defendant had a policy of insurance with
the Zurich Insurance Company but an arbitrator
held that at the time of the accident, the use of the
motor vehicles was outside the limitation as to use