Severance Clauses: Protecting Your Contract from Partial Invalidity
What Is a Severance Clause?
A severance clause (also called a severability clause) provides that if any provision of the contract is found to be invalid, illegal, or unenforceable, the remaining provisions continue in full force. It prevents one bad clause from bringing down the entire agreement.
Why Severance Clauses Matter
Contracts sometimes include terms that turn out to be unenforceable — perhaps a non-compete is too broad, a penalty clause is deemed excessive, or a provision conflicts with a new regulation. Without a severance clause, a court could potentially void the entire contract because of one problematic term.
A severance clause tells the court: "If you have to strike something, just remove that part and keep everything else."
Typical Severance Clause Language
"If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby."
Some clauses go further and instruct the court to reform the invalid provision to the closest enforceable version rather than simply removing it.
Severance vs. Severability
These terms are used interchangeably in contract drafting. Both refer to the same concept — the ability to sever (remove) an invalid clause while keeping the rest of the contract intact. Do not confuse this with "severance" in the employment context (severance pay).
Limitations
- A court may refuse to sever a provision if it is so central to the agreement that removing it fundamentally changes the deal.
- If the invalid provision was the primary consideration for one party, severability may not save the contract.
- Some jurisdictions are more willing to reform (rewrite) invalid clauses than others.
When to Consult a Lawyer
If a key provision in your contract may be unenforceable, consider consulting an attorney to understand whether the severance clause will protect the rest of the agreement or whether the entire contract is at risk.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.