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 Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
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 ...
are
void or unenforceable, but other portions of the contract are
enforceable. 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
Blue pencil may refer to:
* Blue pencil (editing), a pencil traditionally used by an editor or sub-editor to show corrections to written copy
* Blue pencil doctrine, a legal concept in common law countries
See also
* George Pirie Thomson
...
.
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 Westminster ...
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, 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
In contract law, a non-compete clause (often NCC), restrictive covenant, or covenant not to compete (CNC), is a clause under which one party (usually an employee) agrees not to enter into or start a similar profession or trade in competition again ...
, 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)
References
{{reflist
Common law
Legal doctrines and principles