Severability Clause
If one part of the contract is unenforceable, the rest remains valid and in force.
While straightforward in theory, many businesses fail to actively track obligations tied to this concept - often resulting in missed deadlines, unintended renewals, penalties, or loss of contractual rights.
US Law · For business owners and foundersWhat is a Severability Clause?
A severability clause states that if any provision of the contract is found to be invalid, illegal, or unenforceable, that provision is removed or modified, but the rest of the contract remains fully effective. It prevents the invalidity of one clause from contaminating the entire agreement.
Courts can and sometimes do strike down individual contract provisions - a non-compete that is too broad, a limitation of liability clause that violates statute, or an arbitration clause that is procedurally defective. Without a severability clause, a party might argue that the entire contract fails because of the invalid provision. With one, the contract survives minus the offending term.
In practice, many teams rely on a contract expiry tracking system to stay on top of dates and obligations tied to clauses like this.
Key Elements
Striking vs. Modifying
When a court finds a clause unenforceable, it either strikes the clause entirely or "blue-pencils" it - modifying the clause to bring it within enforceable limits. Whether a court will modify rather than just delete depends on the state's law and the nature of the clause. A severability clause can expressly authorize courts to modify.Scope of Severance
The clause protects against the invalidity of individual provisions. It does not save the entire contract if the core, essential purpose of the deal itself is illegal or void. If the contract was entered into to accomplish something illegal, severability cannot rescue it.Express vs. Implied Severability
Even without an express severability clause, courts often apply a severability doctrine to preserve contracts when individual provisions fail. But an express clause removes ambiguity and clearly signals the parties' intent to preserve the rest of the contract if any part is struck.Interaction with Non-Compete Clauses
Severability clauses are especially important in employment agreements that include non-compete or non-solicitation provisions. If a court finds the non-compete overbroad and voids it, the severability clause ensures the confidentiality obligations, IP assignment, and other provisions in the same agreement survive.Real-World Example
A software company's standard client agreement includes: (1) a limitation of liability clause, (2) a mandatory arbitration clause, (3) a governing law clause, and (4) a confidentiality provision. A court finds the arbitration clause procedurally unconscionable and declares it unenforceable. The client argues the entire contract is now void.
With a severability clause, the court simply removes the arbitration clause and the rest of the agreement - limitation of liability, governing law, and confidentiality - remains fully enforceable. Without one, the client could argue (though courts would likely reject this) that the whole contract fails. The severability clause definitively resolves the issue in favor of the contract's survival.
This is why many businesses adopt automated deadline tracking to ensure no critical dates are missed before they pass.
Sample Clause Language
Standard Severability ClauseWatch Out For
Relying on severability to rescue fundamentally illegal contracts
A severability clause cannot save a contract whose essential purpose is illegal. If the core deal is void, removing one provision will not fix it. Severability is a backstop for edge-case clause failures, not a license to include illegal terms.Non-competes in states that void them entirely
In California, employee non-compete clauses are void as a matter of public policy. A severability clause will remove the non-compete - but the rest of the employment agreement, including trade secret obligations and IP assignment, typically survives. This is a feature, not a bug, of the severability clause.Don't let severability clause deadlines catch you off guard
Key dates tied to severability clauses - renewal windows, expiry cutoffs, notice periods - can easily slip through the cracks when tracked manually. Missing them triggers automatic extensions, penalties, or lost rights. ExpiryEdge tracks every critical deadline and sends automated reminders before they're due - so nothing slips.
Instead of relying on spreadsheets or manual follow-ups, a centralized renewal reminder system ensures every deadline is visible, tracked, and actioned automatically.
How to Use This in Your Favor
Include a severability clause in every commercial contract
It is a short, standard provision that costs nothing and protects you significantly. In any contract that includes novel or aggressive provisions - non-competes, limitation of liability, arbitration - severability ensures that an adverse ruling on one provision does not unravel the entire agreement.Authorize courts to modify rather than just delete
Include language authorizing courts to modify an invalid provision to the minimum extent necessary to make it enforceable, rather than simply deleting it. This is especially useful for non-compete clauses that courts might otherwise strike entirely but would be willing to narrow.Frequently Asked Questions
Is a severability clause always enforced exactly as written?
Generally yes. Courts respect severability clauses as an expression of the parties' intent to preserve the contract even if individual provisions fail. The rare exception is when the invalid provision is so central to the entire deal that severing it would fundamentally change what the parties agreed to.
Does every contract need a severability clause?
Not strictly required - courts often imply severability even without an express clause. But including one eliminates any ambiguity about the parties' intent. For any contract containing provisions that could plausibly be challenged (non-competes, arbitration, limitation of liability), an express clause is strongly advisable.
Can a severability clause be used to enforce an arbitration clause after it is declared unconscionable?
No. If a court finds an arbitration clause unconscionable, the severability clause removes it from the contract. The contract continues without arbitration - the dispute then proceeds in court. Severability saves the rest of the contract; it does not save the invalid provision itself.