Why Virginia Courts will not re-draft your contract to be reasonable
Virginia is a wonderful place.
It is for lovers. It has mountains and oceans and delightful seasons. We have both urban and rural, crowded and vast spaces.
It is a Commonwealth, and when I read a contract that states Virginia is a State (and doesn’t reference the fact it is a Commonwealth) I presume the drafter of the contract does not live or work in Virginia.
And when I read a restrictive covenant that includes the following language, I know the lawyer who drafted the contract is neither licensed to practice in Virginia, nor does he or she actually practice here:
If any of the above restrictive covenants are deemed by the Court to be unreasonable or overbroad, the parties agree to allow the Court to re-write the provision to the extent the covenant is binding.. blah blah blah blah blah.
So long as you are asking a Virginia judge to re-write your contract, you are going to be disappointed. They won’t do it. It’s against the public policy of the Commonwealth to ask the Judge to become a party in your contract imposing and drafting contractual provisions.
Judges go further to toss out covenants that contain such blue pencil language (yes, we lawyers love coming up with silly terms of art used to describe things and here, when you ask the court to re-write something, we call it a “blue pencil” provision). And by toss it out I mean they don’t care if it is reasonable or not – the fact you are asking the court to do it may mean the Court thinks your whole contract or portions thereof are now unreasonable and not binding.
Talk about throwing the baby out with the bath water.
So when I see one of these little goodies in a contract I tell my client – “trust me, you don’t want to litigate but if you do… here is your get out of jail free card. Here is the one loophole.”
Now, I do love my home state… I mean Commonwealth, and sometimes I love our laws. This is one of them. I HEART BLUE PENCIL PROVISIONS because they truly separate the local lawyers from the out of town gals… and when you represent employees who are forced to sign these contracts, you are always looking for loopholes.
So, lesson over. Virginia is a Commonwealth and no our judges won’t re-write your contract.