Severability Clause, or Separability Clause, a boilerplate clause often finds its little space in the last pages of a contract. This clause, since bearing considerable implications, is never overlooked by the parties to a contract. The Severability Clause is based on the ‘Doctrine of Severability’ or ‘Doctrine of Separability’, in according to which, in the event, any provision of a contract is rendered illegal or void, and therefore, not enforceable, the remaining provisions shall be severed and enforced independent of the unenforceable provision, provided such severance does not adversely affect the effectuation of the intention of parties to such contract.
The term ‘Severability Clause’ has been defined under Black’s Law Dictionary1 to mean a provision that keeps the remaining provisions of a contract or statute in force if any portion of that contract or statute is judicially declared void, unenforceable, or unconstitutional.
The Severability Clause finds its basis from the Blue-Pencil Doctrine, or Blue-Pencil Test, which means to delete the invalid (unenforceable) words of a part of a contractual provision to keep the other parts of such provisions validated, and thus, enforceable. Resultingly, the valid part of a provision is enforced without the need to invalidate the complete provision solely owing to a certain invalid part. The term ‘blue-pencil’ popularly means to censor or to make cuts such as in a manuscript, film, or other works.
Blue-Pencil Test has been defined under the Black’s Law Dictionary2 to mean a judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words.
The rationale behind the application of the Doctrine of Severability or Blue-Pencil Test is to check whether a contractual provision can be severed into several parts with independent enforceability and implication of each severed part. The severed parts are saved for its validity and enforceability, and the parts that are illegal and void, and thus, unenforceable, are nullified, while others are enforced. Consequently, rather than invalidating the complete contract, only the invalid provisions are nullified and not enforced. However, any such severance shall not adversely affect the intention of the parties to the contract.