“Is This Clause Even Enforceable?” When Contracts Say Things the Law Doesn’t Allow

By Jesse David Eisenberg, Esq. | JDE Law Firm, PLLC

You signed the contract. So did they. Everything was in writing.

But now there’s a problem — and suddenly, your lawyer says: “That clause might not be enforceable.”

How can that be?

Because not every term in a contract is legally valid — even if both parties agreed to it.

Enforceability Isn’t Just About Consent

Contracts aren’t magic. They don’t override the law. If a term violates statute, public policy, or court precedent, it can be voided — and sometimes take the whole agreement down with it.

Common examples of unenforceable clauses:

• Overbroad non-compete or non-solicit clauses — especially in NY and NJ employment contexts
• Excessive late fees or penalties that courts consider punitive, not compensatory
• One-sided indemnity or waiver clauses that courts find unconscionable
• Forum selection clauses in agreements with no tie to the chosen jurisdiction

Three Questions That Help Spot Trouble

1. Does the clause comply with state law? NY and NJ have strict limits on certain contract terms — especially in employment, leases, and consumer-facing deals.
2. Would a judge find it fair and balanced? Courts can strike down clauses that shock the conscience or exploit an imbalance of power.
3. Is it written clearly enough to enforce? Ambiguous terms are often construed against the drafter — or tossed out entirely.

Just Because It’s In There Doesn’t Mean It’ll Hold Up

If you’re in a contract dispute — or worried about one — the best thing you can do is get a legal audit of what actually holds weight.

I’ve seen companies try to enforce terms they never had the right to demand — and others walk away from rights they didn’t know they had.

Enforceability = Leverage

📞 If you’re unsure what your contract can (and can’t) do for you, let’s review it now — before someone else does it first:
www.jdelaw.nyc | NY: 718-966-0877 | NJ: 732-490-7120

My business is to protect your business.