Key Takeaways

  • A severability clause ensures that if one part of a contract is found invalid or unenforceable, the remainder of the agreement remains intact.
  • These clauses protect the parties’ original intent and help avoid the entire contract being voided due to a single defective provision.
  • Courts may “sever” the invalid term or, in some cases, reform it to reflect the parties’ intent without affecting the contract’s core purpose.
  • Drafting a severability clause with clear savings and reformation language minimizes legal risk and improves enforceability.
  • Real-world examples and sample language help clarify how these clauses are structured and how they operate in practice.

A severability clause sample is something you should read before you include a severability provision in a contract. The enforceability of such a clause depends on its significance to the purpose of a contract, local and state laws, and other factors. If a severability provision is an essential part of a contract and cannot be deleted without altering the purpose of the agreement, it may cause the entire contract to be declared invalid. As such, it is important to make sure that your severity clause is properly drafted. This can be done by referring to a severity clause sample.

What Is a Severity Clause?

A severability clause refers to a contractual provision that describes the effect that an unenforceable part of a contract will have on an agreement. Depending on the alternatives available, a potentially invalid severability clause may be rewritten only if it does not address an “essential purpose” of a contract. In the event that a severability provision addresses an essential purpose, it cannot be rewritten and will cause the entire contract to be unenforceable.

In general, a severability clause consists of two parts:

  1. Savings language for preserving the rest of an agreement if a court decides that a certain part is unenforceable
  2. Reformation language stating how the contracting parties will modify the unenforceable parts or simply delete them

In certain jurisdictions, “severability” is a concept that applies to most contracts. Nonetheless, the courts in these jurisdictions are sometimes unable to delete certain clauses because they may be too essential to the purpose of a contract. If this happens, the entire contract may be declared invalid. As such, it is a good idea to include a severability provision in an agreement to show that the contracting parties are willing to delete unenforceable or illegal provisions and save the rest of the contract.

Key Elements of a Severability Clause

A well-drafted severability clause typically contains two key components that outline how the agreement should function if part of it is invalidated:

  1. Savings Language: This portion specifies that if any clause is found unenforceable, it should be treated as though it were removed. The remainder of the contract continues to operate as intended.
  2. Reformation Language: This part gives parties or courts the ability to modify the invalid provision to reflect their original intent without violating the law.

Some severability clauses also include intent language, explicitly stating that the parties prefer modification over total invalidation. This additional clarity can be especially important in complex agreements, such as employment contracts, licensing deals, or mergers, where a single clause’s failure could otherwise have significant consequences.

Why Severability Clauses Matter in Contracts

A severability clause plays a critical role in protecting the enforceability of contracts. Without this provision, a court ruling that even a single clause is invalid—whether due to illegality, ambiguity, or public policy—could jeopardize the entire agreement. Including a severability clause helps preserve the remainder of the contract, allowing the valid provisions to continue governing the parties’ relationship despite one section’s unenforceability.

From a legal standpoint, severability clauses reinforce contractual stability by ensuring that nonessential terms can be removed or reinterpreted without undermining the agreement’s central purpose. They also demonstrate the parties’ intent to uphold their bargain even if part of it fails under scrutiny. Courts often use these provisions as a guiding tool to “blue pencil” or reform defective language—such as overly broad noncompete clauses—so the rest of the contract remains legally binding.

Examples of a Severability Clause

Sample 1

SEVERABILITY: The unenforceability or invalidity of any clause in this Agreement shall not have an impact on the enforceability or validity of any other clause. Any unenforceable or invalid clause shall be regarded as removed from this Agreement to the extent of its unenforceability and invalidity. Therefore, this Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.

Sample 2

SEVERABILITY: Unenforceability or invalidity of one or more clauses in this Agreement shall not have an effect on any other clause in this Agreement. If it is possible, any unenforceable or invalid clause in this Agreement shall be modified to show the original intention of the parties.

Sample 3

SEVERABILITY: If any clause, or portion of a clause, in this Agreement is considered invalid under the rule of law, it shall be regarded as stricken while the remainder of this Agreement shall continue to be in full effect.

Sample 4

SEVERABILITY: In the event that a court of competent jurisdiction finds any term or clause in this Agreement to be invalid, unenforceable, or illegal, the same will not have an impact on other terms or clauses in the Agreement or the entire Agreement. However, such a term or clause may be revised to the extent required according to the opinion of the court to render the Agreement enforceable or valid, and the rights and responsibilities of the parties shall be interpreted and enforced accordingly, so as to preserve their agreement and intent to the fullest possible extent.

Sample 5

  1. [John] and [Jane] intend to make this Agreement severable.
  2. If any clause, provision, section, sentence, or other portion of this Agreement is found to be inapplicable, invalid, void, unconstitutional, illegal, contrary to public policy, or unenforceable by law to any circumstance or person, [John] and [Jane] intend that the remainder of the Agreement will nonetheless continue to be in full effect, provided that the purpose of this Agreement is not impacted in a manner that is adverse to either party.
  3. In the event that any term or clause in this Agreement is regarded as inapplicable, invalid, void, unconstitutional, illegal, contrary to public policy, or unenforceable by law to any circumstance or person, [John] and [Jane] shall attempt to negotiate in good faith to revise the Agreement to impact its purpose in such a way that it will be as acceptable to both parties as possible.

Drafting Tips and Best Practices

When drafting a severability clause, clarity and precision are essential. Consider the following best practices:

  • Be explicit about intent: Clearly state that the contract should remain valid even if part of it is unenforceable.
  • Use jurisdiction-appropriate language: Laws governing severability can vary by state or country, so ensure the language aligns with applicable legal standards.
  • Address essential terms: Note that clauses fundamental to the contract’s purpose (e.g., payment terms or essential obligations) may not be severable.
  • Include modification language: Allow for reasonable modifications of invalid provisions so they reflect the parties’ original intent while remaining enforceable.

By following these drafting guidelines, parties can reduce the risk of unintended contract termination and improve the likelihood that their agreement will withstand judicial scrutiny.

Real-World Applications and Use Cases

Severability clauses are standard in many types of agreements, from commercial contracts and employment agreements to real estate leases and service contracts. They are especially vital when contracts contain complex terms—such as restrictive covenants, arbitration agreements, or intellectual property provisions—that might be challenged in court.

For example, if a noncompete clause in an employment agreement is deemed overly broad and unenforceable, a severability clause allows the rest of the contract—such as confidentiality obligations and compensation terms—to remain valid. Similarly, if a single provision in a merger agreement conflicts with regulatory requirements, the remainder of the deal can proceed as planned without renegotiating the entire agreement.

Frequently Asked Questions

  1. What is the main purpose of a severability clause?
    It ensures that if one part of a contract is invalid or unenforceable, the rest of the agreement remains binding and enforceable.
  2. Can a severability clause save a contract if an essential term is invalid?
    Not always. If the invalid term is fundamental to the contract’s purpose, the entire agreement may still be void.
  3. Do all contracts require a severability clause?
    While not legally required, including one is strongly recommended because it protects the contract’s enforceability and reduces legal risk.
  4. Can a court modify an unenforceable clause?
    Yes, if the severability clause includes reformation language, courts can sometimes modify invalid terms to align with the parties’ intent.
  5. Where is a severability clause usually found in a contract?
    It’s typically located toward the end of the agreement alongside other boilerplate provisions, such as governing law and dispute resolution clauses.

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