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such a situation arises to ensure that the rest of the contract will remain in force even if an individual clause is no longer valid.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.
