The blue pencil doctrine is a legal principle that allows a court to selectively enforce or modify a contract by striking out or blue-penciling specific clauses that are deemed unenforceable, unreasonable, or contrary to law. This doctrine provides the court with the ability to salvage the valid portions of a contract while discarding or modifying the problematic provisions.
The term "blue pencil" originated from the idea of using a blue pencil to cross out or edit text in a written document. In the context of contract law, the blue pencil doctrine is often applied to restrictive covenants, such as non-compete agreements or non-disclosure clauses, that may be overly broad or unfair. When a court determines that a particular provision in a contract is unenforceable, rather than invalidating the entire contract, it may choose to "blue pencil" or sever the offending language while leaving the rest of the contract intact.
The application of the blue pencil doctrine varies by jurisdiction, and not all legal systems recognise or permit its use. In jurisdictions that accept the blue pencil doctrine, the court typically exercises its discretion to strike out or modify only the minimum necessary to cure the defect, without rewriting the entire agreement.
You can learn more about this topic with our Contract Law notes.
