A Contractual Oxymoron?: The Enforcement of the Negative Stipulation in the Context of Employment and Financial Contracts

Abstract

This paper considers whether, and if so how, a court of equity will intervene to “enforce” a “negative stipulation” which implicitly arises in every contract in which an express promise is made to perform it in a particular way. As Salmond and Winfield observed long ago, “… (A) stipulation which is in form affirmative may be negative in substance. If this is found as a fact to be the true construction, the Court will restrain the doing of an act which infringes the stipulation”.