The decisions that are the focus of this article, however, involve situations in which the courts do not simply refuse to enforce portions, or the entirety of the parties' covenant not to compete, but instead "rewrite" the "unreasonable" terms of the parties' restrictive covenant to bring them within the scope of "reasonableness," and hence, form enforceable contracts. From the perspective of the will theory of contracts, the substantial and growing minority of jurisdictions that permit courts to "rewrite" restrictive covenants in this fashion have seemingly created a new theory of contractual obligation, which I will refer to as "the theory of involuntary contracts." The focus of the analysis undertaken in Part I of this article is the source of the judiciary's authority to "rewrite" the terms of mutual agreements to contradict the parties' actual "will." Part II of this article contrasts "the theory of involuntary contracts" with the traditional judicial function. Part III describes the practical appeal of "the theory of involuntary contracts," and Part IV proposes a theoretical justification of the re- writing of restrictive covenants that relies not upon contract law, but instead upon principles borrowed from the law of restitution.
Samuel C. Damren,
The Theory of "Involuntary" Contracts: The Judicial Rewriting of Unreasonable Covenants Not to Compete,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V6.I1.3