Berlitz Schools of Languages, Ltd v. Duchene [1903] ScotLR 41_110 (03 December 1903)

Berlitz Schools of Languages, Ltd v. Duchene [1903] ScotLR 41_110 (03 December 1903)

The contract of employment, including the restrictive covenant, was not assignable without the employee's consent because it involved personal confidence (delectus personae). The company, as assignee, had no title to enforce the restriction, and the obligation not to teach could not be severed and enforced independently. The assignment altered the nature and burden of the original obligation, which was personal to the original employer.

Citation
[1903] ScotLR 41_110
Parties
Pursuer/appellant: Berlitz Schools of Languages, Limited; Pursuer (for His Interest): Georges Abraham; Defender/respondent: Jean Duchene
Jurisdiction
Scotland
Judgment Date
03 December 1903
Procedural Posture
Civil Appeal / Appeal From Sheriff Substitute to Inner House, First Division
Outcome
appeal refused; interdict denied
Legal Topics
Assignability of Contracts, Delectus Personae, Restraint of Trade, Restrictive Covenants, Employment Agreements
Contract Law Employment Law Assignability of Contracts Delectus Personae Restraint of Trade Restrictive Covenants Employment Agreements

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Parties

Berlitz Schools of Languages, Limited

Pursuer/appellant

Georges Abraham

Pursuer (for His Interest)

Jean Duchene

Defender/respondent

Procedural Posture

Civil Appeal / Appeal From Sheriff Substitute to Inner House, First Division

Legal Issues

  1. 1 Whether a contract of employment containing a restrictive covenant is assignable without the employee's consent
  2. 2 Whether the restrictive covenant can be enforced independently by an assignee company after transfer of the business

Ratio Decidendi

The contract of employment, including the restrictive covenant, was not assignable without the employee's consent because it involved personal confidence (delectus personae). The company, as assignee, had no title to enforce the restriction, and the obligation not to teach could not be severed and enforced independently. The assignment altered the nature and burden of the original obligation, which was personal to the original employer.

Court Disposition

appeal refused; interdict denied

Orders

  • The appeal is dismissed.
  • No interdict granted against the defender.