Latin for Lawyers

RESTRAIN, RESTRAINT

RESTRAIN, RESTRAINT [L. restringo , restringere / to bind, bind tightly, confine] To hold back by force or decree. To prevent from acting. To restrict a person’s movements or freedom. A temporary restraining order (sometimes referred to as a TRO ) is an order of a court, usually issued ex parte , that forbids the respondent from committing some act until the court can determine whether or not to issue a temporary ( pendente lite ) or permanent injunction. Example of a restraining order: an order to a husband not to harass his wife or children until a full custody hearing. The word restraint is used by lawyers in several contexts. A restraint on alienation is a provision in a conveyance instrument that inhibits or prohibits the transferee from selling or disposing of the prop erty conveyed; these restraints are generally void as a matter of public policy. A restraint of trade is an agreement or combination which has the intent or tendency to stifle or affect competition in the otherwise free commercial mar ket; these restraints violate the Sherman Antitrust Act. A prior restraint is any action taken by a government official or by statute to control the contents or text of any expression before its publication. Any effort to control the dis semination of information protected by the First Amendment of the Constitu tion is a prior restraint if it is imposed before a judicial hearing to determine whether it qualifies for First Amendment protection. New York Times Co. v. United States (1971) . An unlawful restraint occurs whenever one knowingly confines, or interferes with the free movement of, another, without lawful authority. RES TRANSIT CUM SUO ONERE Property passes from one to another along with its burdens. RESTRICT, RESTRICTION [L. restringere / to bind or confine] To place conditions upon; to limit or control. To place limits upon the use or enjoyment of a property or asset. A regulation or rule that has the effect of controlling or curbing conduct. A limitation or condition upon the use or enjoyment of land, usually contained in the instrument of conveyance or in an agreement among the interested parties. These limitations are called restric tive covenants . RESTRICTIVE [L. restringere ] A provision or condition which limits the use of; places conditions upon; or prohibits. A restrictive covenant is a provision in a deed, lease or contract limiting the use or enjoyment of a parcel of real property, e.g., a covenant preventing the grantee or tenant from using the property for commercial pur poses. Covenants restraining the transfer of property interests on the basis of race are unenforceable under the Constitution. A restrictive endorsement is an endorsement upon a negotiable instrument which limits further endorse-

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