Duhaime's Law Dictionary


Blue-Pencil Severance Definition:

Striking out an offending part of a legal document, such as a contract or a statute.

A controversial judicial technique by which a judge strikes out an offensive part of a statute or of a contract so that the remainder complies with the law.

In Atwood, the British Court described blue-pencil severance as:

"... a contract can be severed if the severed parts are independent of one another and can be severed without the severance affecting the meaning of the part remaining. This is sometimes expressed ... by saying that the severance can be effected when the part severed can be removed by running a blue pencil through it."

In 2004, in a case called Transport North American, Canada's Supreme Court wrote:

"Under the blue-pencil test, severance is only possible if the judge can strike out, by drawing a line through, the portion of the contract they want to remove, leaving the portions that are not tainted by illegality, without affecting the meaning of the part remaining. In other words, the offending provision must constitute a separate promise, and one that is not part of the main purport and substance of the contract. The provision must appear severable."

Blue-pencilIn Shafron, Justice Rothstein of Canada's Supreme Court wrote:

"Severance, when permitted, appears to take two forms. ... applied in limited circumstances to remove illegal features of a contract so as to render the contract in conformity with the law.

"Notional severance involves reading down a contractual provision so as to make it legal and enforceable.

"Blue-pencil severance consists of removing part of a contractual provision ..."

In words adopted by the Court in Transport North American:

"The blue-pencil test is imperfect because it involves mechanically removing illegal provisions from a contract, the effects of which are apt to be somewhat arbitrary.... Courts inescapably make a new bargain for the parties when they use the blue-pencil approach."

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