Definition of divisibility

What is divisibility?

Divisibility, also known by the Latin term “salvatorius,“is a provision of a law or a contract that allows the rest of the terms of the law or the contract to remain in effect, even if one or more of its other terms or provisions is found to be unenforceable or illegal. A clause of separability in a The contract establishes that its terms are independent of each other, so that the rest of the contract will remain in force if a court declares one or more of its provisions null or unenforceable.

However, in some cases, a severability clause will specify that some provisions of a contract are so vital to your purposes that if they are found to be unenforceable or unlawful, the contract as a whole must be considered unlawful or unenforceable. Generally, a severability clause cannot be used to change the nature of a contract.

Severability should not be confused with severance pay, which is residual income paid to an employee laid off under certain circumstances.

Key takeaways

  • A severability clause in a contract allows certain parts to remain in effect even if others are illegal or unenforceable.
  • Severability can refer to certain vital provisions that must be left intact.
  • Severability clauses often contain savings language and reform language.

Understanding divisibility

Without a severability clause, a contract could be considered unenforceable due to a breach of only part of the contract. Sometimes, however, severability clauses state that some of the provisions of the contract are so essential to its purpose that, if they are illegal or unenforceable, the entire contract will be void.

Severability clauses generally contain two parts. The savings language preserves the remaining agreement in the event that a court determines that a party cannot be enforced, which is why the severability clauses are also known as savings clauses, and the amendment language describes how the parties intend that non-executable parts are modified to be executable or are simply removed. .

If a judgment, clause, or term in a contract is deemed invalid by a court, the problem area of ​​the contract will generally be rewritten to fit both the original intent of the contract and the court’s requirements, under the rule of reasonableness. But if the severability clause addresses the essential purpose of the agreement, then the entire agreement could become unenforceable.

Severability clauses are also found in the legislation, where they establish that if some provisions of the law, or certain applications of those provisions, are declared unconstitutional, the remaining provisions, or the remaining applications of those provisions, will nonetheless continue to remain. in force.

Examples of severability clauses

An example of a severability clause in a contract could be read:

“If a provision of this Agreement is or becomes illegal, unenforceable or invalid in any jurisdiction, it will not affect (1) the applicability or validity in that jurisdiction of any other provision of this Agreement, or (2) the applicability or validity in other jurisdictions of that or any other provision of this Agreement. ”

In legislation, a severability clause could specify that if any “section, subsection, sentence, clause, phrase, word, provision, or application” of the law is deemed invalid, illegal, unconstitutional, or unenforceable, that determination will not affect or undermine the law. validity of any other “section, subsection, sentence, clause, phrase, word, provision or application” that can be enforced without the use of the infringing party of the legislation.

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Mark Holland

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