Abstract
The operation of restrictions on the assignment of commercial leases is examined in a number of common law jurisdictions to ascertain whether lessons can be learned to inform the future development of the law. It is concluded that while absolute restrictions have a useful role to play, there is a case for banning them in sectors of the market where tenants lack adequate legal advice. Drawing on the US experience, it is considered that qualified restrictions have little to commend them. In relation to fully qualified restrictions, it is submitted that the ‘reasonableness' standard needs to be rebalanced in favour of tenants. Even if that were to be achieved however, vulnerable tenants would still need protection from sophisticated drafting mechanisms adverse to their interests. A special statutory regime for small commercial tenants is recommended.
Published Version
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