What It Does
A severability clause is a contractual provision stating that if a court finds any part of the contract invalid, illegal, or unenforceable, the remaining provisions stay in full force. It prevents one defective term from voiding the entire agreement. Many severability clauses also direct the court or the parties to reform the offending provision, replacing it with a valid one that comes as close as possible to the original intent. Courts generally enforce severability clauses, though they will not save a contract whose essential purpose depended on the invalid term.
Keeps the remaining provisions enforceable when a court invalidates one part
Confines the effect of an invalid term to that term alone
Often directs reformation: replacing the invalid provision with the closest valid equivalent
Sometimes requires the parties to renegotiate the struck provision in good faith
Signals to a court that the parties intended the agreement to survive partial invalidity
Reformation language ("replace with a valid provision of closest economic effect") is increasingly standard, giving courts a path to narrow a term rather than strike it outright.
When You'll See It
Severability sits in the boilerplate at the end of almost every contract, beside governing law, notices, and the entire-agreement clause. It draws little attention until a provision is challenged, and then it can decide the outcome. It matters most in agreements with aggressive or jurisdiction-sensitive terms: non-competes, liability caps, arbitration provisions, and restrictive covenants, where one term is most likely to be struck. See also: governing law, entire agreement, and waiver.
Examples
Rare Element Resources Ltd
Indemnitee, Indemnification Agreement
Survive-only
Mutual
2024
"If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement ... shall not in any way be affected or impaired thereby; (b) to the fullest possible extent, the provisions of this Agreement ... shall be construed so as to give effect to the intent manifested by the provision which is held to be invalid, illegal or unenforceable."
Blueprint Medicines Corporation
Royalty Pharma Investments 2019 ICAV, Consent and Termination Agreement
Reformation
Mutual
2024
"If one or more provisions of this Termination Agreement are held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision ..., and the parties hereto shall replace such invalid, illegal or unenforceable provision with a new provision ... having an economic effect as close as possible to the invalid, illegal or unenforceable provision."
Bank of America, N.A.
U.S. Bank Trust Company, N.A., Joinder Agreement
Good-faith renegotiation
Mutual
2024
"In case any one or more of the provisions ... should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision ..., but the validity, legality and enforceability of the remaining provisions ... shall not in any way be affected or impaired. The parties hereto shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which come as close as possible to that of the invalid ... provisions."
Booz Allen Hamilton Holding Corporation
Participant, Restricted Stock Agreement
Blue-pencil / strike-only
Mutual
2018
"Severability; Blue Pencil. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby."
Athenex, Inc.
Employee, Salary Deduction & Stock Purchase Agreement
Reform to minimum extent
Mutual
2022
"...it is the specific intent of the parties that the provision will be modified to the minimum extent necessary to make it or its application valid and enforceable and will be enforced to the fullest extent allowed by law, and the other provisions of this Agreement will nevertheless remain effective and will remain enforceable."
Negotiate
Reformation language, so a court can narrow an overbroad term instead of striking it.
A statement that the parties intended the agreement to survive partial invalidity.
For high-risk terms like non-competes, a step-down or “blue pencil” provision paired with severability.
Severability will not save a contract whose essential purpose or core consideration is the invalid term.
A reformation clause directs but does not force a court to rewrite; some courts decline.
In some states, courts refuse to blue-pencil an overbroad non-compete even where the contract allows severance.
Red Flags
No severability clause at all, so one invalid term can put the whole contract at risk.
Severability with no reformation or step-down, leaving an overbroad term to be struck entirely rather than narrowed.
Language that purports to sever a core economic term, which a court may refuse to honor because it guts the bargain.
A clause that claims to bind the court to rewrite the contract; courts reform at their discretion and cannot be ordered to do so.
FAQs
This content is for informational purposes only and does not constitute legal advice.
