Severability

Key Takeaways

• Severability ensures a contract's remaining terms stay effective if some are unenforceable.
• Savings language maintains the rest of an agreement, even if part is voided.
• Reformation language modifies unenforceable parts to comply with legal standards.
• Without a severability clause, a minor illegality could void the entire contract.
• A severability clause can't change the contract's overall nature.

What Is Severability?

Severability, also known by the Latin term "salvatorius," is a provision in legislation or a contract that allows the remainder of its terms to remain effective even if one or more of its other terms or provisions are found to be unenforceable or illegal. A severability clause in a contract states that its terms are independent of each other so the rest of the contract will remain in force should a court declare one or more of its provisions void or unenforceable. Savings language preserves the contract, and reformation language provides guidance on modifying unenforceable parts.

In some cases, however, a severability clause will specify that certain provisions of a contract are so vital to its purposes that the contract as a whole must be found to be illicit or unenforceable if the provisions are found to be unenforceable or illicit, A severability clause usually cannot be used to change the nature of a contract.

We'll explore the details of these clauses, their importance, and offer some practical examples.

How Severability Clauses Impact Contracts

Without a severability clause, a contract could be deemed unenforceable because of a default on just one part of the contract. Sometimes though, severability clauses state that some of the contract’s provisions are so essential to its purpose that if they are illegal or unenforceable, the contract as a whole will be voided.

Severability clauses generally contain two parts. Savings language preserves the remaining agreement in the event a court finds a part to be unenforceable—which is why severability clauses are also known as savings clauses—and reformation language describes how the parties intend unenforceable parts to be modified to be enforceable, or simply deleted.

If a sentence, clause, or term in a contract is deemed invalid by a court, the problem area of the contract will usually be rewritten to fit both the contract's original intent and the requirements of the court, under the rule of reasonableness. But if the severability clause addresses the essential purpose of the agreement, then the entire agreement could be made unenforceable.

Severability clauses are also found in legislation, where they state that if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue to remain in force.

Examples of Severability Clauses in Contracts and Legislation

An example of a severability clause in a contract might read:

“If a provision of this Agreement is or becomes illegal, unenforceable, or invalid in any jurisdiction, it shall not affect (1) the enforceability or validity in that jurisdiction of any other provision of this Agreement, or (2) the enforceability or validity in other jurisdictions of that or any other provision of this Agreement.”

In legislation, a severability clause might specify that if any “section, subsection, sentence, clause, phrase, word, provision or application” of the law shall be found to be invalid, illegal, unconstitutional, or unenforceable, that finding shall not affect or undermine the validity of any other “section, subsection, sentence, clause, phrase, word, provision, or application” which can be enforced without the use of the offending portion of the legislation.

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