Blue pencil doctrine

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The blue pencil doctrine is a legal concept in common law countries, where a court finds that a portion of contract is void or unenforceable, but the other part of the contract is enforceable. In that case the court may order the parties to follow the enforceable part and can delete the voided portion.

"Oh, no, my Lord, I assure you that parts of it are excellent!"'. Unlike the curate's egg, which if bad should be discarded in toto, the Blue Pencil Rule allows the "good bits" to be kept and the "bad bits" to be deleted. However, the revised version must represent the original meaning; one may not use the Rule to (say) delete the word "not", and thereby change a negative to a positive.

Etymology

The term stems from the act of editing written copy with a blue pencil.

In UK law

The principle was established by the House of Lords in the case of Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co.

Other statutory provisions such as the Sale of Goods Act 1979 and the Unfair Terms in Consumer Contracts Regulations 1999^[1] have established the principle in statute law.

In Rose & Frank Co v JR Crompton & Bros Ltd, the Blue Pencil Rule was used to strike out an unacceptable clause in an MOU agreement which appeared to try to exclude the jurisdiction of the courts. The unconscionable part having been excised, the remainder of the agreement was valid, and served to establish that the MOU agreement was not intended by the parties to be binding at law.

In other jurisdictions

In most jurisdictions, courts routinely "blue pencil" or reform covenants that are not reasonable. The blue pencil doctrine gives courts the authority to either strike unreasonable clauses from a non-compete agreement, leaving the rest to be enforced, or actually modify the agreement to reflect the terms that the parties could have — and probably should have — agreed to.^[2] In Israel the blue pencil method has been used to strike out illegal or unconstitutional parts of a statute leaving the rest extant.^[3]

See also

• Rectification (law)

References