Severability clause
A severability clause says that if a court strikes down one part of a contract, the rest of the contract stays in force.
What it means
Contracts sometimes contain a term a court will not enforce, because it breaks a law or goes too far. A severability clause tells the court to cut out only the bad part and keep the rest of the contract working. Courts often do this anyway, but without the clause there is more room to argue the whole contract should fail.
For example, a contractor agreement might include a non-compete that turns out to be unenforceable in the contractor’s state. With a severability clause, the non-compete drops out, but the payment terms, IP ownership and confidentiality promises still apply. Some clauses go further and ask the court to rewrite the invalid term into the most restrictive version the law allows.
That rewriting option matters, and courts differ on it. Some will only strike out words, sometimes called “blue-penciling,” some will reshape the term, and some refuse to fix an overbroad term at all. Severability looks neutral, but it tends to help the party that drafted aggressive terms, since its worst case is losing just that one term.
What to watch for
- Check whether the clause only removes an invalid term or also lets a court rewrite or narrow it.
- Look at whether any terms are named as essential, so that losing them would end or change the whole deal.
- Consider whether the contract contains aggressive terms, such as a broad non-compete or penalty, that the drafter may be counting on severability to salvage.
- See how the clause interacts with arbitration and class action waiver terms, which sometimes say what happens if they are found invalid.
- Note which state’s law governs, since that affects whether a court will strike, narrow or refuse to fix an overbroad term.
Example clause
If any provision of this Agreement is held invalid or unenforceable, that provision will be enforced to the maximum extent permitted and the remaining provisions will remain in full force and effect.
If a court throws out one term, the rest of the contract still applies and the bad term is kept as far as the law allows.