Contract Administration
Severability
Also: Severability Clause, Savings Clause, Separability Clause · Severability Clause, Savings Clause, Separability Clause, Severability Provision
A severability clause states that if any provision of the contract is found to be invalid or unenforceable, the rest of the agreement remains in effect.
It is designed to prevent one bad provision from voiding the entire contract.
Lawyer Explanation
A severability clause — also called a savings clause — is a boilerplate provision stating that the invalidity or unenforceability of any particular provision does not affect the validity or enforceability of the remaining provisions.
The clause creates a presumption in favor of preserving the contract as a whole when a specific provision is challenged. Without a severability clause, a court might be more inclined to void the entire agreement if one provision is found to be unenforceable.
However, a severability clause is not a guarantee. If the invalid provision was central to the agreement — such that the remaining provisions cannot stand on their own — a court may still decline to enforce the contract.
What It Actually Does
A severability clause answers: "If a court decides one part of this contract is unenforceable, does the whole deal fall apart?" For example, if a non-compete clause in an employment agreement is found to be overly broad and unenforceable, a severability clause may allow the rest of the employment agreement — including confidentiality obligations and compensation terms — to remain in effect.
Why It Matters
Severability clauses provide stability. They allow the parties to rely on the rest of the contract even if a specific provision is later challenged.
This is particularly important in agreements that contain provisions whose enforceability may be uncertain — such as non-compete clauses, limitation-of-liability provisions, or liquidated damages clauses.
The severability clause should be read alongside the entire agreement clause and any provisions that are particularly important to the overall deal.
Example
A services agreement contains a limitation-of-liability clause that a court later finds to be unenforceable under applicable law.
The severability clause in the agreement allows the rest of the contract — including the service obligations, payment terms, and confidentiality provisions — to remain in effect, even though the limitation-of-liability clause is struck.
Common Language You May See
"If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. The parties shall negotiate in good faith to replace any invalid provision with a valid provision that achieves, to the greatest extent possible, the original intent of the parties."
What Stewart Law Looks For
- Does the contract include a severability clause?
- Does the clause address what happens when a core provision is found to be unenforceable?
- Does the clause require the parties to negotiate a replacement for any invalid provision?
- Is the severability clause consistent with the governing law clause?
- Are there any provisions in the agreement whose invalidity would effectively destroy the deal?
- Does the clause address partial invalidity — where a provision is valid in part but not in whole?
Common Red Flags
A severability provision deserves closer attention when it:
- is absent from the contract, leaving the entire agreement at risk if one provision is challenged
- fails to address what happens when a core or essential provision is found to be unenforceable
- does not require the parties to negotiate a replacement for an invalid provision
- conflicts with the governing law clause in a way that creates uncertainty about which rules apply
Perspectives
Customer / Buyer
Both parties generally benefit from a severability clause that preserves the rest of the agreement if a specific provision is challenged. The party relying on a potentially uncertain provision will particularly want a strong severability clause.
Vendor / Seller
The same considerations apply. Both parties benefit from the stability that a severability clause provides.
Florida & Federal Considerations
Florida
Florida courts generally enforce severability clauses and will attempt to preserve the remainder of a contract when a specific provision is found to be unenforceable. However, if the invalid provision was essential to the agreement, the court may decline to enforce the rest of the contract.
Related Terms
Contracts Where You'll Commonly See It
Frequently Asked Questions
Does a severability clause guarantee that the rest of the contract survives if one provision is invalid?
Not always. A severability clause creates a presumption in favor of preserving the remainder of the contract, but courts may still decline to enforce the rest of the agreement if the invalid provision was central to the deal.
Can a court modify an invalid provision rather than striking it entirely?
In some cases, yes. Courts may reform or modify an overly broad provision — such as a non-compete clause — to make it enforceable rather than striking it entirely. Whether this is available depends on the jurisdiction and the nature of the provision.
What happens if a core obligation of the contract is found to be unenforceable?
If an essential term is unenforceable, the severability clause may not be sufficient to save the rest of the agreement. Courts will consider whether the remaining provisions can stand on their own without the invalid term.
Is a severability clause required in every contract?
No, but it is a common and useful boilerplate provision. Without it, a court may be more likely to void the entire contract if one provision is found to be unenforceable.
Does a severability clause affect the parties' ability to negotiate a replacement for an invalid provision?
Some severability clauses include a provision requiring the parties to negotiate a replacement for any invalid term. Whether such an obligation exists depends on the contract language.
Have a Contract Using These Provisions?
Contract language operates as part of the agreement as a whole.
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