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Blue Pencil

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HomeBrud.gifContract LawBrud.gifBlue Pencil Doctrine

Blue Pencil is a term used to mean to censor or to make cuts in some work.

  • Blue Pencil Doctrine is a judicial standard which helps a court finds portions of a contract is 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.

Notes

  • The general rule of contracts is that the illegal parts of a contract are illegal and hence unenforceable. But there are many contract containing one part or a clause as illegal and rest of the other parts as legal. The court in such cases strikes out the illegal part and enforces the legal one when the parts are severable.

Blue Pencil Doctrine in UK Law

  • The principle was established by the House of Lords in the case of Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co.
  • 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.

Blue Pencil Doctrine in Indian Law

  • Babasaheb Rahimsaheb v. Rajaram Raghunath: The court observed the application of blue pencil in Indian contracts as well be holding that "in an agreement if different clauses are separable, the fact that one clause, is void does not necessarily cause the other clauses to fail".
  • Sunil Kumar Singhal and Another v Vinod Kumar: Held that the offending part in the arbitration clause can be severed or marked by the blue pencil.
  • Shin Satellite Public Co Ltd v Jain Studios Limited: Held that "the proper test for deciding validity or otherwise of an agreement or order is 'substantial severability' and not 'textual divisibility'