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Severability
A severability clause ensures that if one provision of a contract is deemed invalid or unenforceable by a court, the remainder of the agreement remains intact. This prevents an entire contract from being voided due to a single problematic clause.
Severability is a standard inclusion in most commercial contracts, providing stability and predictability for both parties.
Why Severability Matters
Without a severability clause, an invalid term—like an overly broad non-compete—could render the entire contract unenforceable. This simple clause safeguards the overall intent and continuity of the agreement, preserving enforceable rights and obligations.
It supports:
- Contract resilience in the face of changing laws
- Fair enforcement of valid terms
- Reduced legal exposure in disputes
Best Practices for Severability
- Place the clause near boilerplate terms (e.g., governing law or assignment).
- Specify that only the invalid portion is affected.
- Allow replacement with a valid, similar term where possible.
- Review for jurisdictional requirements.
- Keep the clause clear and concise to avoid ambiguity.
Example of Severability in Practice
A court invalidates a non-compete clause for being overly restrictive, but the severability provision ensures the remaining terms—like confidentiality and payment—remain enforceable.
Frequently Asked Questions
What happens if a contract has no severability clause?
A court has to decide whether the invalid provision is central enough to void the whole agreement. Sometimes judges will sever it anyway based on the parties’ apparent intent, but you’re leaving that to chance. Without the clause, one overreaching term, say a non-compete drafted too broadly, can put every other obligation in the contract at risk.
Where should a severability clause appear in an agreement?
In the general or miscellaneous provisions near the end, alongside governing law, assignment, notices, and entire agreement terms. Placement doesn’t affect enforceability, but grouping boilerplate keeps it easy to review and reduces the odds it gets dropped during redlining. Two or three sentences is plenty, and it should say only the offending portion is affected.
Can a severability clause save an unenforceable non-compete?
It can save the rest of the contract, not necessarily the non-compete itself. Courts in some states will strike the restriction entirely, while others will narrow it to something reasonable if the contract permits reformation. Adding language that invites the court to replace an invalid term with the closest valid one gives you a better shot at partial enforcement.
