blue pencil doctrine
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The blue pencil doctrine is a legal concept in
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
countries, where a
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
finds that portions of a
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
are void or unenforceable, but other portions of the contract are
enforceable An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid ...
. The Blue Pencil Rule allows the legally valid, enforceable provisions of the contract to stand despite the nullification of the legally void, unenforceable provisions. However, the revised version must represent the original meaning; the rule may not be invoked, for example, to 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 The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
in the case of '' Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co'' (1894). Other statutory provisions such as the
Sale of Goods Act 1979 The Sale of Goods Act 1979c 54 is an Act of the Parliament of the United Kingdom which regulated English contract law and UK commercial law in respect of goods that are sold and bought. The Act consolidated the original Sale of Goods Act 1893 ...
and the Unfair Terms in Consumer Contracts Regulations 1999 have established the Blue Pencil principle in statute law. In
Rose & Frank Co v JR Crompton & Bros Ltd ''Rose & Frank Co v JR Crompton & Bros Ltd'' 924is a leading decision on English contract law, regarding the intention to create legal relations in commercial arrangements. In the Court of Appeal, Atkin LJ delivered an important dissenting judg ...
, the Blue Pencil Rule was used to strike out an unacceptable clause in a memorandum of understanding agreement which appeared to try to exclude the jurisdiction of the courts. The unenforceable 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 originally could have — and probably should have — agreed to. In
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
the blue pencil method has been used to strike out illegal or unconstitutional parts of a statute, leaving the rest intact.http://elyon1.court.gov.il/files/12/460/071/b24/12071460.b24.htm Supreme Court decision regarding illegal aliens of 16 September 2013


See also

*
Rectification (law) Rectification is a remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first place. It is an equitable remedy,Walker MorrisDo you know who you’re dealing with? published 29 November 2013, acce ...


References

{{reflist Common law Legal doctrines and principles