A Severability Clause is part of the boilerplate provisions you find in many contracts. It essentially asks the court interpreting the contract to ignore just the unenforceable portions of the contract. Absent this provision, a court may choose to throw out the entire contract if there are any issues.

Simple Severability Clause

If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.

This example stresses simplicity. However, this example is not good in cases where the unenforceable provision is material or otherwise cannot be removed.

 

Material Provisions

If any of Sections 2, 3, 5, or 10 of this Agreement are held to be invalid and unenforceable, then the Court is instructed to replace the unenforceable provision with an enforceable provision that best represents the intention of the parties to this Agreement.

This example is very popular; however, it is risky. In many circumstances, the Court will refuse to write the contract for you. This is called blue penciling and is only permitted in certain states for a limited number of circumstances.

 

Specific Severability Clause

If this Section 8 of the Agreement is held invalid and unenforceable, then the court is instructed to enforce the remainder of the contract as written, but this Section 8 shall read as follows…

Sometimes, contracts have multiple severability clauses for different portions of the contract. You can specify your own replacement language in the event a court finds your provision unenforceable. This happens with restrictive covenants, liquidated damages, and other strictly reviewed clauses.

 

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