Separability: Overview, definition, and example
What is separability?
Separability refers to a legal principle in contracts that ensures if one provision or clause of the agreement is found to be invalid, illegal, or unenforceable, the remainder of the contract remains valid and enforceable. A separability (or severability) clause typically outlines this principle, preserving the integrity of the agreement even if certain parts cannot be enforced.
For example, if a court invalidates a non-compete clause in an employment agreement, the separability clause ensures that the rest of the agreement, such as salary and benefits, remains enforceable.
Why is separability important?
Separability is important because it protects the overall validity of contracts, reducing the risk of the entire agreement being nullified due to one problematic provision. For businesses, this ensures that their contracts remain operational and enforceable, minimizing disruptions and legal disputes.
Including a separability clause in agreements provides clarity and reduces uncertainty, giving parties confidence that the core terms of their arrangement will be upheld even if parts need to be removed or adjusted.
Understanding separability through an example
Imagine a partnership agreement that includes a clause restricting one partner’s ability to compete after leaving the partnership. If a court rules that this non-compete clause is too broad and unenforceable, the separability clause allows the rest of the agreement—such as provisions about profit-sharing and decision-making—to remain intact.
In another example, a service agreement contains a pricing provision that violates local regulations. The separability clause ensures that the rest of the agreement, including the scope of services and delivery terms, remains enforceable while the invalid provision is either removed or amended to comply with the law.
An example of a separability clause
Here’s how a separability clause might look in a contract:
“If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be severed from the Agreement, and the remaining provisions shall remain in full force and effect. The Parties agree to negotiate in good faith to replace any invalid provision with a valid provision that achieves, as closely as possible, the intended purpose of the original provision.”
Conclusion
Separability ensures that contracts remain enforceable even if certain provisions are invalidated or removed. It protects the integrity of agreements, reduces legal risks, and provides flexibility to adapt to changing legal or regulatory conditions.
By including a clear separability clause in agreements, businesses can safeguard their interests, ensure continuity, and minimize disruptions caused by unforeseen legal challenges to specific provisions.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.