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can place the agreement at risk. Note, however, that in

Massachusetts and many other states, a court may simply

re-write the terms of the non-compete to make it

enforceable if it finds the agreement to broad, and then

enforce the new, more reasonable terms.

Compensation problems: there is a basic principle

of contract law that says a material breach by one party

excuses performance by the other. In other words, the

first party to breach a contract may not be able to expect

performance by the second of other promises. Where

this comes up in the context of non-competes is where an

employer has not paid the employee all agreed wages or

commissions. In cases like that, some courts have found

that because the employer materially breached the terms

of employment, the employee was excused from

complying with the non-compete provision.

64| Rules of the Road