Also known as: negative stipulations · negative covenant
Written by attorneys · grounded in primary & secondary sources — see below
A contractual promise requiring the promisor to refrain from specified conduct. The promise creates a duty of forbearance rather than an obligation to perform an affirmative act. When the duty runs with land it may qualify as a restrictive covenant or negative easement.
Northern Wind agreed in writing not to build turbines inside a scenic buffer zone on Casey's ranch. When Northern Wind began grading roads inside the zone, Casey sought an injunction. The court treated the promise as imposing a duty of forbearance that could be enforced by prohibiting the construction.
Gold Wireless leased tower space to Alpha under a clause barring subleasing or co-location without consent. Alpha arranged for National Network to install equipment anyway. Gold sought an injunction to stop the installation, relying on the promise to refrain from permitting other carriers.
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Parev granted Rokeach exclusive rights to market Nyafat for fifty years and promised not to sell any similar product during the term. Rokeach later marketed a competing item. Parev claimed the negative promise had been breached and sought to enforce the restraint.
Johanna Wagner contracted to sing at Her Majesty's Theatre for a set period and agreed not to sing elsewhere during that time. When she accepted an engagement at a rival venue, the theatre sought an injunction to prevent her from performing there.
A negative stipulation imposes a duty to refrain from conduct while an affirmative covenant requires the promisor to perform an act. The distinction turns on the nature of the burden rather than the subject matter of the promise.
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A court may grant an injunction to enforce a negative stipulation when the duty is one of forbearance and damages would not adequately protect the promisee's interest. The injunction prevents the prohibited conduct without requiring ongoing supervision of affirmative performance.
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Yes. A negative covenant that limits permissible uses of land is treated as a restrictive covenant. When the burden or benefit runs with the land the restriction creates a servitude enforceable against successors.
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Courts may deny specific performance of the affirmative promise because of supervision concerns yet still enforce the negative promise by injunction. The injunction prevents the prohibited conduct without compelling the affirmative act.
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…Since the express negative covenants did not forbid this competition, the plaintiff argued that the court should imply a negative covenant to forbid it. The court rejected the defendant’s argument that only covenants intended by the parties may be implied. The court noted the then traditional “reluctance of courts to admit…