Skip to main content

Is extra consideration necessary for making a modification to an existing non compete agreement?

Harrisburg, PA |

Non-Compete Agreements were entered into at the start of employment but need to be revised slightly.

Attorney Answers 3

Posted

Yes, there generally does have to be additional consideration, and it does have to be valuable and substantial consideration, not just token consideration, to be enforceable. But it doesn't necessarily have to be in the form of giving you cash along with it. It can be something else that is beneficial to you. That being said, I would have to see your employment contract (if any), the prior noncompete, and the proposed noncompete, plus find out more about the facts surrounding your employment (how long have you worked there, what signing the noncompete would change for you & the ramifications, etc.) to be able to give you an answer that pertains to your specific situation, as general principles may not apply to your situation. There are PA case decisions that refer to specific fact situations. Plus, there were decisions floating around as of a few years ago that said that certain language in noncompetes might render them enforceable even without consideration. (I lost track of that line of cases after 2009, but it's something to keep in mind & have your lawyer look up when he/she reviews your prospective noncompete.) So, in sum: 1) generally, yes, additional valuable consideration is necessary, and 2) have a lawyer who regularly works with employment contracts and noncompetes review everything before you sign so you can get specific advice.

Note that some people I know have been successful in ignoring additional noncompete forms and hoping their companies didn't notice that they weren't handed back, but this is not a recommended strategy.

If my answer was helpful to you, I would appreciate if you would mark it either "helpful" or "best answer" if you feel that applies, as AVVO gives us rating points based on feedback. Thank you! Please note that the above answer is not to be construed as legal advice. It is my personal opinion based on your question, and it was given without obtaining the detailed information that I would normally request in order to render comprehensive legal advice. I advise you to consult with a local attorney of your choosing to obtain specific legal advice. The fact that I answered your question does not create an attorney-client relationship between you and me.

Mark as helpful

5 lawyers agree

1 comment

Rochelle S. Rabin

Rochelle S. Rabin

Posted

Also, please note that there has been long-standing Pennsylvania case law that says that $1 in and of itself is NOT considered sufficient consideration. So if that's what's in your agreement, please have your attorney look at the current case law to see if there have been any changes in the PA court's sentiments on that topic. My guess is that there haven't been, but you never know.

Posted

Not necessarily, however it depends on the existing agreement and the willingness of the parties. You should consult with an attorney. Some non-competes are not enforceable as too broad geographic range and time

All information provided in this comment is intended for informational purposes only and does not, by itself, create an attorney client relationship. Without the benefit a personal consultation to exploe all of the facts of your legal problem, the information in this posting may be inaccurate and for that reason it should not be relied upon. If you wish to consult with an attorney, or have any questions concerning this comment, please feel free to contact our offices through any of the above contact sources.

Mark as helpful

2 lawyers agree

Posted

The answer is no and yes. No additional consideration is necessary to MAKE the modification, you just need to adhere to the modification clause in the agreement (if any). Additional consideration is necessary to make the modification ENFORCEABLE, assuming it is a material modification. However, in PA, the valuable "consideration" required may be as little as $1.00, or even the promises contained in the modification if so stated. You should consult with an experienced attorney to either draft the language or at least review it for legal sufficiency as those seemingly inconsequential non-competes seem to become very important at the most inopportune times.

Mark as helpful

3 lawyers agree

Business topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics