Virginia Blue Pencil RuleIt is extremely important to consult a skilled contract attorney when drafting, reviewing, or negotiating a contract as not all agreements are legally enforceable. This is especially important in Virginia as case law has shown that Virginia Courts refuse to “blue pencil” contracts. The “Blue Pencil Rule” permits a court to modify an otherwise unenforceable provision in a contract, usually a restrictive covenant, to make it reasonable.
Many contracts contain a severing provision in its miscellaneous or general terms section. Blue penciling is different from a severing provision in a contract. Severing allows the complete removal of an unenforceable provision from a contract which is otherwise legally enforceable, while blue penciling provides the court the power to rewrite invalid language in a contract to make it enforceable. However, as Virginia does not permit blue penciling, drafters cannot rely on the courts to correct errors or oversights made while drafting an agreement to make their unenforceable language enforceable.
For more information regarding Virginia contract law, please see Virginia Contract Law Blog, Types of Contracts, Contract and Legal Document Drafting, Reviewing and Editing Contracts, Collaborating on Business Agreements and Disputes, Negotiating Contract Terms, Provisions, and Agreements, and Business Litigation.