Severability clauses protect contracts when courts find specific provisions unenforceable. Without severability, invalidating one clause may void entire agreement. With severability, courts strike problematic provisions while enforcing the rest. Traditional drafting uses standard forms but requires customization for specific agreements. AI-powered generators produce appropriate severability language instantly. Contract drafters across all practice areas use these tools to add essential protection efficiently.
Why Are Severability Clauses Essential?
Courts may find contract provisions unenforceable for various reasons: violating public policy, exceeding legal limits, or being unconscionably one-sided. Without severability clause, question becomes whether invalidated provision is so central that entire contract fails. With severability clause, default rule changes. Courts presume invalid provisions can be severed while maintaining remaining terms. This presumption protects parties' expectations and contractual relationships from collapsing due to single problematic clause.
Severability particularly matters for contracts with provisions having uncertain enforceability. Non-compete clauses, limitation of liability provisions, and penalty clauses may be challenged. If court finds non-compete overbroad, severability preserves confidentiality and other employment terms rather than invalidating entire employment agreement. This protective function makes severability standard inclusion in nearly all contracts. The small effort to include clause provides significant insurance against partial invalidity destroying entire deal.
- Protects contracts when courts invalidate specific provisions
- Prevents entire agreement from failing due to one bad clause
- Particularly important for provisions with uncertain enforceability
- Standard inclusion in professional contracts across all types
What Should Basic Severability Clauses Say?
Standard severability clause: "If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect." This basic form accomplishes the essential goal. It tells courts that parties want maximum enforcement of remaining valid terms if any provision is struck. Most severability clauses follow this pattern with variations in wording but same substance.
Enhanced versions add reformation language: "Invalid provisions shall be reformed to the maximum extent enforceable under applicable law." This asks courts not just to sever invalid provisions but to modify them to become valid. For example, if non-compete is too broad geographically, reformation language supports court narrowing scope rather than voiding entirely. Not all jurisdictions allow reformation, but including language enables it where permitted without harm where not.
Should Severability Clauses Limit Materiality?
Some severability clauses include materiality exception: "If severing invalid provision materially alters the agreement, either party may terminate." This protects against situations where invalid provision was so central that remainder is fundamentally different deal. For example, if employment agreement's salary clause is void, remaining obligations without compensation might not reflect parties' intent. Materiality exception allows escape when severability would create unreasonable result.
However, materiality exceptions create uncertainty. What constitutes "material alteration" is judgment call inviting dispute. Many drafters prefer unconditional severability accepting that parties can always choose not to perform if partially invalid agreement becomes unacceptable. The strategic question is whether certainty of full severability outweighs protection of materiality exception. For most commercial contracts between sophisticated parties, unconditional severability is preferred. For consumer contracts or adhesion agreements, materiality exceptions may provide fairer balance.
How Do Severability Clauses Interact With Arbitration?
When contracts contain arbitration clauses, question arises whether arbitrators or courts decide severability. Generally, courts decide contract formation and enforceability questions. But severability of non-arbitration provisions may be for arbitrators to decide. Some agreements specify: "The validity and enforceability of individual provisions, excluding the arbitration clause itself, shall be determined by arbitrators. The validity of the arbitration clause shall be determined by courts." This allocation prevents circular problem of invalid arbitration clause preventing arbitration about other provisions' validity.
Severability also protects arbitration clauses themselves. If arbitration provision has invalid element (improper class action waiver, unconscionable fee allocation), severability allows court to strike problematic part while preserving arbitration requirement. "If any portion of the arbitration clause is invalid, remaining arbitration requirements shall continue in effect." This internal severability within arbitration provisions preserves alternative dispute resolution even when specific arbitration terms are modified or struck.
Are There Situations Where Severability Should Not Be Included?
Some agreements are so integrated that partial enforcement makes no sense. If parties negotiate package deal where all terms are interdependent, severability might undermine intent. For example, complex commercial transaction where pricing, payment terms, warranties, and deliverables are carefully balanced package might not work with pieces severed. In such cases, omit severability or include materiality exception allowing termination if severance materially changes deal economics or risk allocation.
Integration clauses and non-severability provisions occasionally appear in contracts where parties specifically want all-or-nothing enforcement. "This Agreement constitutes integrated whole and may not be partially enforced. Invalidity of any material provision renders entire Agreement void." Such provisions are rare because they increase risk of total invalidity. Use only when business deal truly requires all provisions to be enforceable or parties prefer no contract to partial enforcement. For vast majority of contracts, severability is appropriate and protective.
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AI-powered severability clause generation produces appropriate provisions instantly. By selecting contract type and customization preferences, drafters get professionally written severability language ready to paste into agreements. All contract drafters benefit from consistent, properly worded boilerplate that provides essential protection without requiring research or customization. The technology handles standard language while humans focus on substantive provisions unique to specific deals. This division of labor ensures complete contracts without wasting time on routine boilerplate.