Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
Contents
A tiny drafting mistake should not put your whole deal at risk. This guide explains severability clauses in plain English - what they do, how courts use them, and how to draft them well so your contract keeps working even if one part falls over.
Why this matters
When you are running a business, the last thing you want is to discover that a single dodgy paragraph has put your entire contract at risk. It happens more often than people realise. The good news is there is a simple legal tool that gives you peace of mind: the severability clause (also called a salvatory clause or severance clause). In this guide, we cover what severability clauses are, how they protect your business, and practical ways to use them so unexpected contract hiccups are less worrying.What is a severability clause?
A severability clause is a standard provision found in most well drafted contracts. It says that if one part of the contract turns out to be invalid or unenforceable - because of a change in law, a drafting error, or anything similar - the rest of the agreement still stands. Think of it as a safety valve. If a court needs to strike out one problematic term, the clause signals that everything else should continue unaffected.Quick example
Your contract has 20 clauses. If one clause - say a non compete that is too broad under UK law - is struck out, a severability clause confirms the other 19 clauses remain binding.Why severability clauses matter
Even with careful drafting, things can go wrong. A term may be unlawful, outdated, ambiguous, or interpreted in a way no one expected. Laws can also change mid contract. Without a severability clause, you risk a court finding the whole agreement unenforceable or, at best, expensive arguments about what still applies. Including a severability clause adds an extra layer of certainty. If one bit fails, the rest can keep you protected and on track.How courts actually treat unenforceable terms
UK courts use a blue pencil approach. They can delete offending words or provisions so long as what remains still makes sense and reflects the bargain. Courts do not rewrite or add new wording. The remainder must work on its own terms. Modern severance follows a practical test: the offending words can be removed without adding to what remains, the rest still makes coherent sense and is supported by consideration, and the overall effect is not a re write of the parties' deal. This approach was confirmed by the Supreme Court in Tillman v Egon Zehnder (employment restraint context) and is widely applied. There are limits. If the struck out part is fundamental - the commercial heart of the deal - a severability clause will not rescue the agreement because there is no meaningful contract left to enforce.Consumer and B2B contexts
In consumer contracts, the Consumer Rights Act 2015 says unfair terms are not binding, but the rest of the contract continues so far as practicable. In B2B contracts, terms can still fail the Unfair Contract Terms Act 1977 reasonableness test. A severability clause cannot make an unfair or unreasonable term enforceable - it only helps preserve the rest of the agreement once the bad bit is removed.Is severability automatic if you forget the clause?
Sometimes a court will sever even without an express clause, but it is discretionary and fact sensitive. Relying on judicial goodwill is not a strategy. If you want predictability - and fewer legal fees - include a clear severability clause.What a typical severability clause looks like
Basic wording covers the essentials:If any provision of this Agreement is held to be invalid or unenforceable, that provision shall, to the extent of such invalidity or unenforceability, be deemed deleted and the remainder of this Agreement shall continue in full force and effect.
Better drafting - two useful upgrades
To make life easier in practice, many commercial contracts add two extra elements:- Minimum modification - a signpost that, where the same commercial result can be achieved by trimming words, the parties want the provision to apply with the minimum change needed to make it enforceable. Courts will not rewrite for you, but this helps the parties amend quickly.
- Good faith replacement - a short obligation to negotiate a like for like replacement clause if a core risk allocation falls away.
If any provision of this Agreement is or becomes invalid or unenforceable, that provision shall, to the minimum extent necessary, be deemed deleted and the remainder shall continue in full force and effect. If any invalid or unenforceable provision would be valid or enforceable if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid and enforceable. The parties shall in good faith negotiate a valid replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Severability in practice - what to expect
- If a clause is invalid, the court may snip the offending words and leave the rest in place.
- The remainder must still make commercial sense on its own. Courts will not redraft or improve the bargain.
- If the invalid term is fundamental, the whole contract may fall - even with a severability clause.
- In consumer contracts, unfair terms fall away and the rest continues where practicable. In B2B contracts, unreasonable exclusions or limitations may fail under UCTA even if a severability clause exists.
Can you remove or change an invalid clause mid contract?
Yes. A severability clause buys you room to fix issues without collapsing the deal. In practice you might agree to:- Delete the clause and proceed without it.
- Replace it with a narrower or more compliant version.
- Formally vary the contract so the documentation matches the commercial reality.
Any downsides?
Very few. The main risk is assuming severability will save anything. It will not. If the contract loses its core bargain once a clause is removed, there is nothing left to enforce. Also, because courts do not rewrite, a clause that could be fixed with a light tweak may still fail unless the parties proactively amend it.Practical tips from Sprintlaw
- Include a severability clause in almost all commercial contracts - it is low cost protection.
- Use the upgraded wording with minimum modification and good faith replacement where risk allocation is important.
- Do not rely on severability for compliance - draft restrictions, exclusions, and charges to pass CRA and UCTA tests up front.
- If a clause looks risky, deal with it now - amend the contract rather than waiting for a dispute.
Key takeaways
- A severability clause keeps the rest of your contract alive if one term is invalid.
- Courts can delete offending words but will not rewrite - the remainder must still work.
- Consumer and reasonableness rules can knock out terms regardless of severability, but the rest of the deal can usually continue.
- Adding minimum modification and replacement language gives you a faster path to a compliant fix.
