What Is Severability?
Severability, also known by the Latin term "salvatorius," is a provision in a piece of legislation or a contract that allows the remainder of the legislation’s or contract’s terms to remain effective, even if one or more of its other terms or provisions are found to be unenforceable or illegal. A severability clause in a contract states that its terms are independent of one another so that the rest of the contract will remain in force should a court declare one or more of its provisions void or unenforceable.
However, in some cases, a severability clause will specify that some provisions of a contract are so vital to its purposes that, if they are found to be unenforceable or illicit, the contract as a whole must be found to be illicit or unenforceable. Usually, a severability clause cannot be used to change the nature of a contract.
Severability should not be confused with severance, which is residual income paid out to a let-go employee under certain circumstances.
- A severability clause in a contract allows certain parts to remain in effect even if others are illegal or unenforceable.
- Severability might refer to certain vital provisions that must be left intact.
- Severability clauses often contain savings language and reformation language.
Without a severability clause, a contract could be deemed unenforceable because of a default on just one part of the contract. Sometimes though, severability clauses state that some of the contract’s provisions are so essential to its purpose that if they are illegal or unenforceable, the contract as a whole will be voided.
Severability clauses generally contain two parts. Savings language preserves the remaining agreement in the event a court finds a part to be unenforceable — which is why severability clauses are also known as savings clauses — and reformation language describes how the parties intend unenforceable parts to be modified to be enforceable, or simply deleted.
If a sentence, clause, or term in a contract is deemed invalid by a court, the problem area of the contract will usually be rewritten to fit both the contract's original intent and the requirements of the court, under the rule of reasonableness. But if the severability clause addresses the essential purpose of the agreement, then the entire agreement could be made unenforceable.
Severability clauses are also found in legislation, where they state that if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue to remain in force.
Severability Clause Examples
An example of a severability clause in a contract might read:
“If a provision of this Agreement is or becomes illegal, unenforceable, or invalid in any jurisdiction, it shall not affect (1) the enforceability or validity in that jurisdiction of any other provision of this Agreement, or (2) the enforceability or validity in other jurisdictions of that or any other provision of this Agreement.”
In legislation, a severability clause might specify that if any “section, subsection, sentence, clause, phrase, word, provision or application” of the law shall be found to be invalid, illegal, unconstitutional, or unenforceable, that finding shall not affect or undermine the validity of any other “section, subsection, sentence, clause, phrase, word, provision, or application” which can be enforced without the use of the offending portion of the legislation.