Glossary

Severability

A severability clause says that if one term is illegal, void or unenforceable, the rest of the contract still stands. In England and Wales the court can strike the bad words if what remains is a working obligation the parties agreed. It is standard boilerplate, and the safety net under a wide non-compete.

Last updated 28 October 2026

Without severability, one overreaching restraint or an unenforceable penalty clause can be used to attack the whole paper. With it, the rest of the deal — payment, IP, confidentiality — continues. Tillman v Egon Zehnder Ltd [2019] UKSC 32 is the modern UK authority on cutting words out of a restraint so that a valid obligation remains. The clause does not let a court rewrite a bargain the parties never made.

Lex includes a severability line in the boilerplate of the agreements we draft. We would rather you keep a tight non-solicit than rely on a court to rescue a worldwide ban. Edit the risky clause on the shared link; do not hope severability will save a sentence you cannot defend.

What does a severability clause do?

It records that the parties intend each term to stand on its own. If a court will not enforce one clause, the remainder stays in force. That is the usual English commercial default, written down so nobody argues the whole deal falls over. It sits with notices, counterparts and governing law at the back.

What happens if a clause is illegal or unenforceable?

The offending words come out. Payment, IP assignment, confidentiality and the rest keep going unless they cannot work without the severed term. A liability cap that fails for one kind of loss does not usually wipe the cap for everything else. Write independent obligations so the remainder still makes sense.

Can a court rewrite a bad clause?

No. Severability lets a court delete, including by blue-pencil where the remaining words are still a coherent obligation, as in Tillman. It does not let a judge invent a fairer non-compete or a smaller liquidated damages sum. Draft the clause you are willing to live with. Do not leave a worldwide ban “for the court to fix”.

When does severability not save the deal?

When the illegal term was the heart of the bargain, so what remains is a different contract. A services agreement without a fee is not rescued by the heading. Where statute forbids a result — Unfair Contract Terms Act 1977 on excluding negligence — the clause cannot restore wording the statute knocks out.

A worked example

A freelancer’s paper has a two-year worldwide non-compete and a severability clause. The client later tries to enforce the ban against a different product line in another country. The studio’s position is that those extra words can come out; the named-rival, three-month restraint still stands, and so do payment, IP and confidentiality. They do not argue that the whole contract is dead.

How it shows up in a contract

Sample wording · our own drafting

If any term of this agreement is found illegal, invalid or unenforceable, that term is severed to the minimum extent required and the remaining terms continue in full force. The parties will replace a severed term with a valid term that matches the original commercial intent as closely as possible.

In Plain English

If one line cannot be enforced, it comes out and the rest of the contract keeps going. Both sides will swap in a valid line that does the same commercial job, as near as they can.

Common mistakes

  • Relying on severability instead of narrowing a non-compete you already know is too wide.
  • Writing obligations that only work as a package, then assuming a court can pick them apart.
  • Omitting severability from a paper that also contains a penalty clause or a sweeping restraint.
  • Asking a court to “rewrite” a fee or a cap. Severability deletes; it does not redraft.

What the legislation says

  • Liability for death or personal injury caused by negligence cannot be excluded or restricted by a contract term; other negligence liability can be limited only so far as the term is reasonable. Consumer contracts are carved out to the Consumer Rights Act 2015, whose s.31 lists liabilities a trader cannot exclude in contracts for goods.

    Source: Unfair Contract Terms Act 1977, s.2Checked 7 October 2026Pending lawyer review

Sources

Frequently asked questions

What is a severability clause?

A line that says if one term is illegal or unenforceable, the rest of the contract still stands. The court can delete the bad words; it cannot rewrite a bargain the parties never made.

Will severability save a worldwide non-compete?

It may let a court cut words out of a restraint, as in Tillman v Egon Zehnder [2019] UKSC 32, but you should still draft a narrow clause. See /glossary/non-compete.

Can a court replace a penalty with a reasonable sum?

No. A penalty is unenforceable and drops out. Damages are then assessed in the usual way, subject to the cap. See /glossary/penalty-clause.

When does the whole contract fall?

When the illegal term was the heart of the bargain, so what remains is a different deal — for example a services agreement with no fee.

Related

The legal wording governsLast reviewed 28 October 2026Pending lawyer review