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In Law, what is Severability?
Mary McMahon
Mary McMahon
Severability is a concept in contract law which allows people to separate out the components of a contract so that in the event that one aspect is deemed impossible to enforce or invalid, the rest of the contract is not affected. In order to invoke severability, a contract must specifically include a severability clause which indicates that invalidity or unenforceability of some sections of a contract does not render the entire contract invalid.
If an entire contract is invalid, not enforceable, or illegal, including a severability clause will not force someone to abide by the contract anyway. However, in situations which a binding contract contains elements which are not enforceable or invalid, a severability clause can be used to protect the integrity of the rest of the contract. Without such a clause, if someone challenged the contract on the grounds of the problematic inclusions, the whole contract could be considered invalid.
Most contracts include a severability clause. The language of such clauses varies slightly, depending on the taste of the person who drafted the contract. Is is also important to note that if someone identifies a clause in a contract which appears to be problematic, it is better to bring it up before signing the contract, rather than later. It may be possible to have the clause amended or removed and people should definitely not count on using such clauses to challenge the validity of an entire contract in the future.
While the drafters of contracts do not mean to include clauses which are not legal or cannot be enforced, sometimes it happens by mistake, or sometimes the language in a clause can be interpreted in several different ways. Including a severability clause is an effective way of providing coverage in the event that such a situation arises to ensure that the rest of the contract will remain in force even if an individual clause is no longer valid.
One example of a situation in which severability can become important is in contracts which people sign when starting new jobs. Such contracts sometimes include a no compete clause along with other clauses which require people to conceal trade secrets. It may later be determined that the no compete clause cannot be enforced, but the contract is still valid because of a severability clause, so the signer is contractually obligated to retain trade secrets, as that clause of the contract is perfectly legal.
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
Learn more...
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
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Discussion Comments
@hamje32 - I don’t know – but I can tell you something about the non compete clause the article talks about. Every article I’ve ever read said that it’s not enforceable.
Still, I sign that piece of paper with every new job. I have to chuckle when I read the fine print and it says the company owns all my ideas. How can they do that? All the ideas live in my head, and if I resign from the firm, I take my head with me.
I play along anyway; this article sheds some new light. Apparently the contract is good so long as I sign it. I’ve never violated the spirit of the law anyway. As long as you have some integrity you don’t need to worry about the fine print.
The term severability has entered our popular lexicon because of debates about universal healthcare legislation. Such legislation includes a provision called an individual mandate, from what I understand, which requires everyone to own health insurance.
I’ve heard that if the individual mandate is severable, that would mean the Supreme Court could rule it unconstitutional while leaving the rest of the law untouched.
Of course proponents argue that the individual mandate is what makes the rest of the legislation workable so the mandate is eliminated, the whole law still has to go. You would think that politicians crafting these kinds of bills would take these things into account.
@titans62 - I am far from being a lawyer, but it seems like there would probably be some kind of law saying that it is illegal for a person to knowingly draw up a contract that is not enforceable. On the other hand, though, it is always up to the person signing the contract to know whether or not the contract is enforceable.
If you are going to write up a contract and want to include a severability clause, what sorts of things should it cover? Can it just be something simple stating that in the even a section is determined illegal that the rest of the contract can still be enforced, or are there more things that you need to include?
I am trying to come up with a contract for some people who are going to be doing some work for me and want to make sure I get all the necessary items included.
@cardsfan27 - That's a pretty good question. I know what you are talking about, but not sure what would happen. I know in all of the leases for apartments I have ever signed, there is always a severability clause. I can see where it would be very important in that situation, and I'm sure there are a lot of odd things that would happen if it wasn't in there.
Thinking more about how a lease is written, if it didn't have the severability clause, and a part was found to be unenforceable, what would happen to the person living there? If the contract was considered void, could the landlord force the person to move out? Thinking of a hypothetical situation, would it be possible for a landlord to purposefully put in a clause to the contract that they knew wouldn't hold up in court? Then if for some reason they wanted to force someone out of an apartment, they could bring up the illegal clause and void the contract.
@JimmyT - From the way I understand it, your first assumption was correct. As long as there is no severability clause and you can prove that at least one part of the contract is illegal, then you can't be held to anything else that is in the contract, because the contract as a whole is void.
The thing I was really wondering about is, what if one part of a contract specifically references another section of the contract, but it is later found that the section being referenced is not legal. Does that then mean that the section doing the referencing isn't legal either, or just the lines that actually refer to the illegal section?
It seems like there are a lot of instances where you could find issues with a severability clause. That's not to say they shouldn't be included, just that I am guessing there are a lot of loopholes and legal issues that come up with them.
Hmm, I have heard the term severable used a lot of time, but I never really stopped to think what it meant. I guess it makes sense when you think about the root of the word, "sever."
Whenever I think of someone using the term, I always think about the quick fine print that is read very quickly at the end of a commercial or something like that. Usually, when a commercial or radio station or something is advertising some type of contest, they will throw in the line about any contracts being severable.
So, if I understand all of this correctly, if a contract doesn't have a severability clause in it, and someone disobeys one of the stipulations, they can't be held to the terms of the contract even if the rule they broke was legal and enforceable? Or does it mean that they are still held to the enforceable parts, just not the illegal parts?
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