A severability clause allows the rest of an agreement to remain valid even if one or more provisions are unenforceable or illegal. However, some terms may be declared vital to the purpose of an agreement and can therefore not be covered by the severability clause.
A severability clause is usually made up of two parts. Savings language that describes how the remainder of the agreement will remain intact. And reformatory language that describes how both parties have agreed to handle the invalid provisions: delete them or rewrite them, for example. Usually, these terms are rewritten to comply with the legal framework.
Without the inclusion of a severability clause an agreement can become invalid already due to only one provision being unenforceable under local legislation. A severability clause protects the agreement’s overall purpose. If the invalid provision or term is vital to the agreement’s purpose as a whole, however, the severability clause does not have any effect on it.
It also demonstrates the parties’ willingness to amend the agreement in order to keep it intact overall.
A severability clause in a contract might look like this:
“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.”
A severability clause can also be used in legislation. It usually specifies that if one “section, subsection, sentence, clause, phrase, word, provision or application” of the law is deemed unconstitutional or illegal the other sections, subsections etc. are not affected by that.
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