Blue pencil: Overview, definition, and example
What is "blue pencil"?
The term "blue pencil" refers to a legal doctrine or technique used by courts to modify or strike out specific parts of a contract or agreement without invalidating the entire document. This method allows a court to "edit" the contract by removing provisions that are deemed unenforceable, overly broad, or illegal while keeping the remaining parts of the agreement intact. The term comes from the historical use of a blue pencil or pen to mark out text in legal documents. The blue pencil doctrine is often applied in situations where a specific clause or part of the contract is found to be problematic but does not render the entire agreement void.
Why is "blue pencil" important?
The blue pencil doctrine is important because it provides a way for courts to enforce a contract while maintaining its overall integrity. Instead of invalidating an entire agreement due to one unenforceable or illegal provision, the court can strike out or modify only the problematic section. This allows the parties to maintain their contractual obligations in most cases, ensuring that the intentions of the parties are largely preserved while complying with the law. The blue pencil rule helps prevent unnecessary disruption to agreements and provides a more flexible approach to contract enforcement.
Understanding "blue pencil" through an example
For example, a company enters into a non-compete agreement with an employee that includes a clause prohibiting the employee from working in any similar business for five years after leaving the company. However, a court determines that the five-year duration is too long and unreasonable. Rather than voiding the entire non-compete agreement, the court may use the blue pencil doctrine to "edit" the provision, reducing the time period to a more reasonable duration, such as two years. The rest of the agreement remains enforceable.
In another example, a contract between two companies includes a clause that limits one company’s ability to solicit employees from the other. If the clause is written too broadly (e.g., it prohibits solicitation of employees worldwide), a court may apply the blue pencil rule to limit the scope of the restriction, striking out the global aspect but keeping the local restriction intact. This allows the contract to be enforced with more reasonable terms.
An example of a blue pencil clause
Here’s how a blue pencil clause might be written in a contract:
“If any provision of this Agreement is determined by a court to be unenforceable or overbroad, the court may modify the provision to the extent necessary to make it enforceable, and the remainder of the Agreement shall continue in full force and effect. The parties agree that such modifications may be made by the court using the blue pencil doctrine.”
Conclusion
The blue pencil doctrine is an important legal tool that allows courts to modify or remove problematic provisions in a contract without invalidating the entire agreement. This helps to preserve the intent of the parties while ensuring compliance with the law. By applying the blue pencil rule, courts can ensure that contracts are enforceable and fair, even if certain clauses are found to be unreasonable or unenforceable. It provides flexibility in contract enforcement, ensuring that agreements remain intact and functional despite minor issues.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.