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Severability (Common Clauses)

Updated: Jan 25

(This post is part of a series called “Common Clauses,” focused on explaining so-called boilerplate provisions of contracts. Click the link to see other posts in this series).


What is it?


A severability clause allows a contract to remain enforceable even if some part of it might not be enforceable. That is, if only one term of a contract is unenforceable, that term will be ignored; the rest of the contract can still be enforced. Severability clauses are sometimes referred to as a saving clause (because it "saves" the contract).


For example, you hire a swimming pool contractor to renovate your pool at property you own in California. The contractor charges a downpayment in excess of that allowed by California law. If you end up in litigation, the court is not going to enforce the downpayment provision, but may enforce the rest of the contract.


What does it look like?


To avoid confusion (and potential litigation) in such situations, some contracts will explicitly include a severability clause. These clauses don't need to be complex. It could be as simple as “if any term of this contract is deemed unenforceable, then that term shall be severed and the contract shall be construed as though it is not in the contract.”


Severability clauses can be narrowed (applying only to certain terms) or broadened (applying to the entirety of the contract). And, in some cases, your attorney might find that an inseverability clause is appropriate. That is, by contract, you agree that if a given term is severed then the contract fails (as you can imagine, these are uncommon in commercial contracts).


Where does severability come from?


The concept of severability dates back to common law, so it is well established in American (and English) legal history.


California has codified the rule as Civ. Code section 1599: "Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest" (emphasis added). That is, if the provision can be severed, it will be severed.


Texas treats all terms of a contract work together, but that a non-essential term will not invalidate the whole contract. Texas has not codified it, but there is a good deal of case law affirming severability as the default. See, for example, Williams v. Williams (1978) 569 S.W. 2d 867, 871 ("...the invalid provisions may be severed and the valid portions of the agreement upheld provided the invalid provision does not constitute the main or essential purpose of the agreement").


Why include it if state law assumes it?


You do not want to rely on terms being implied. When drafting a contract, you want all parties to know exactly what their rights and obligations are, as well as what the consequences will be if some part is, for some reason, unenforceable. You might litigate for months or years before getting to that point.


Where else have I heard this term before?


It comes up in constitutional law on occasion. A court might determine that part of a statute or regulation is unconstitutional or otherwise unenforceable, while keeping the rest of the statute or regulation in place. This is outside the scope of contractual severability.


Summary


Severability clauses can save a contract from being deemed unenforceable. Just because one term is void does not necessarily mean that the entire contract should be. Bear this in mind when reviewing your contracts, or when discussing them with your attorney.

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