Blue-Pencil Test Law and Legal Definition
The blue-pencil test is a judicial standard that the courts use to decide whether to invalidate the whole contract or only the offending words. If this standard applies, then only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words.
However, now many courts have abandoned the "blue pencil" test in favor of a rule of "reasonableness," which permits courts to determine, on the basis of all available evidence, what restrictions would be reasonable between the parties. The ‘reasonableness’ test differs from the "blue pencil" test only in the manner of modification allowed. It permits courts to fashion a contract reasonable between the parties, in accord with their intention at the time of contracting, and enables them to evaluate all the factors comprising "reasonableness" in the context of employee covenants. [Raimonde v. Van Vlerah, 42 Ohio St. 2d 21, 24-25 (Ohio 1975)].
The following is an example of a case law on the blue-pencil test:
The "blue pencil" test provides that if unreasonable provisions exist in an employment contract, they may be stricken, if divisible, but not amended or modified. It also provides that if restrictions are unreasonable and indivisible, the entire contract fails. [Raimonde v. Van Vlerah, 42 Ohio St. 2d 21 (Ohio 1975)].
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