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Severability clause
A severability clause, also called a savings clause, asks a court to remove a provision it will not enforce and keep the rest of the contract in force. A clause that does its job says whether the court should narrow the provision or delete it, what survives when part of a provision fails, and what happens if the remaining bargain no longer works.
Reviewed by
Brent Farese
Ex-General Counsel & CEO
August 6, 2026
Sample force majeure clause for commercial contracts
A balanced, mutual starting point that reflects the market postures above.
Attorney review required. An attorney must approve this sample, its optional restrictive-covenant sentence, and the governing law before use. It is a drafting starting point, not legal advice, and it is not a statement of market frequency.
This mutual sample decides five things on its face: whether the court is asked to narrow or to delete, that the valid remainder of a partly unenforceable provision survives, what happens if the remaining bargain no longer works, whether the parties must negotiate a replacement and by when, and whether unenforceability in one jurisdiction travels to others. Replace the bracketed business terms.
If a court or other tribunal of competent jurisdiction holds any provision of this Agreement invalid, illegal or unenforceable, the following applies.
(a) The provision shall be enforced to the maximum extent applicable law permits, and shall be reduced no further than necessary to make it enforceable, before it is treated as deleted.
(b) If part of a provision is unenforceable, the remainder of that same provision stays in force.
(c) The remaining provisions of this Agreement stay in full force, so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to either party.
(d) If the economic or legal substance is affected in a manner materially adverse to either party, the parties shall negotiate in good faith a replacement provision that gives effect to their original intent as closely as applicable law permits. If the parties do not agree on a replacement within [30] days, either party may [terminate this Agreement on [30] days written notice].
(e) A holding that a provision is unenforceable in one jurisdiction does not render that provision unenforceable in any other jurisdiction.
Optional sentence for agreements with restrictive covenants. Check the governing state first, because a court's power to cut a covenant down varies by jurisdiction.
If a court holds that a restrictive covenant in this Agreement is unenforceable because its duration, geographic area or scope of activity exceeds what applicable law permits, the parties ask the court to reduce that duration, geographic area or scope of activity to the maximum extent the court finds enforceable and to enforce the covenant as reduced.
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Findings from public force majeure clause studies
One published study supplies the clause-structure numbers below. It coded 500 U.S.-law commercial contracts filed with the SEC between 2017 and 2019. The jurisdictional count comes from a separate January 2026 survey that covers employee noncompetes, a different population from the commercial contracts this page is about. Each figure states its own denominator.
~48%of commercial contracts even contain a standalone force majeure clauseRutgers, n=621
18%of clauses named a pandemic, epidemic, or disease triggereBrevia / QuisLex, n=171
~12%granted a termination right (about 40% in supply chain / logistics)eBrevia / QuisLex, n=171
90 daysmedian duration before a termination right triggeredeBrevia / QuisLex, n=171
Force majeure terms without published percentages
- Payment carve-out: model clauses (BIMCO 2022, ICC 2020) build in a continuing-payment carve-out, pointing to a common market convention.
- Mitigation obligation: described as common in higher-specificity clauses, without a count.
- Economic hardship: courts do not treat it alone as force majeure unless the clause says so (EAPIL; Vici Racing, 3d Cir. 2014).
Sources- eBrevia / BakerHostetler / QuisLex AI contract study, n=171 (via DFIN).
- Rutgers Business Review, Force Majeure Clauses and the COVID-19 Pandemic, n=621 SEC-filed JV contracts.
- Shook, Hardy & Bacon, Force Majeure and Common Law Defenses: A National Survey.
- EAPIL, The COVID-19 Pandemic and Commercial Contracts. BIMCO 2022 / ICC 2020 model clauses.
Force majeure clause mistakes that create enforcement risk
A severability clause is not self-executing. It is evidence of what the parties intended, and it does not remove a court's discretion to refuse severance and void the agreement. The California Supreme Court treated a severability clause as an expression of the parties' intent that an agreement curable by removing defective terms should otherwise be enforced, while holding that the clause could not deprive the court of its statutory discretion. Draft the clause, then check the governing state's severance rules.
Leaving the clause out costs you an argument. Where a contract has no severability clause, a court may refuse to remove the unenforceable term and decline to enforce the agreement that contained it. The South Carolina Supreme Court refused to save an arbitration agreement partly because the contract included no severability clause and no hint that the parties intended the arbitration agreement to stand if part of it fell.
Severability does not reach the core of the deal. Severance is unavailable where the unenforceable performance is an essential part of the agreed exchange, so a clause that fails on the deal's central economics will not be cured by a severability provision.
Over-reaching, then relying on the court to cut the term down. A court may reduce an overbroad term to its enforceable part where the party seeking to enforce it obtained the term in good faith and in accordance with reasonable standards of fair dealing. A party that used dominant bargaining power to extract an over-reaching promise should not expect the court to redraft it.
A categorical clause can save a deal you no longer want. Removing a term can destroy the economic balance the parties bargained for, and a clause that keeps the remainder alive whatever happens makes it likelier that a court enforces the unbalanced remainder. In the 500-contract sample, 15 contracts (3%) guarded against this by conditioning survival on the economic or legal substance of the transaction not being affected in any manner materially adverse to either party.
The entire-agreement clause can argue against severance. A merger clause that bars amendment except by a signed writing can be read as evidence that the parties never agreed to a modified version of the contract. Read the severability clause against the entire-agreement clause and the governing law clause rather than treating each as separate boilerplate.
How to negotiate a force majeure clause
| Issue | Market posture | Reasonable fallback | Push back hard |
|---|
| Payment carve-out | Payment obligations excluded from force majeure | Short grace period for banking-system failure only | Any clause that lets the counterparty stop paying during an event |
| Event list | Enumerated list plus "including, without limitation" | Enumerated plus a catch-all tied to reasonable control | A closed "limited to" list, which leaves you litigating the gap |
| Epidemic | Expressly named after 2020 (most clauses still do not) | "Public health emergency declared by a competent authority" | Silence; courts split on whether "act of God" reaches COVID |
| Notice | Prompt written notice with a workable window | Prompt notice, no fixed day count | Notice as a condition precedent on a 48-hour fuse |
| Termination trigger | Either-party right after a prolonged event (public median 90 days) | A longer trigger, either party | Indefinite suspension with no termination right |
| Economic hardship | Expressly excluded | Silence | "Material adverse change in market conditions," a repricing right in disguise |
Questions about force majeure clauses
What is a severability clause?
A severability clause, also called a savings clause, asks a court to remove a provision it will not enforce and keep the rest of the contract in force, so that one bad term does not take the whole agreement down with it. The Restatement rule is permissive: a court may enforce the rest of the agreement, and it is not obliged to.
severability
How common are severability clauses in commercial contracts?
In a study of 500 U.S. commercial contracts filed with the SEC between 2017 and 2019, 71% included a severability clause. Common, then, but not universal: 145 of the 500 contracts carried no severability clause at all.
severability
Does a severability clause guarantee the rest of the contract survives?
No. A court keeps discretion to decide that the illegality reaches the central purpose of the agreement and to refuse severance. The California Supreme Court put it as the central purpose of the contract being tainted with illegality. Other states phrase the inquiry differently, so check the governing law.
severability
What happens if a contract has no severability clause?
A court can still sever an unenforceable term. The absence of the clause is something a court may hold against severance, though, and at least one state supreme court has refused to save an agreement partly for that reason. A missing severability clause does not void a contract; it costs you an argument.
severability
What is the difference between severing and reforming a provision?
Severing removes the offending language. Reforming, sometimes called blue-pencilling, narrows the provision so that a cut-down version still binds. A clause can ask for either or for both.
severability
Can a court narrow an overbroad restrictive covenant instead of striking it?
It depends on the state. A January 2026 survey classifies 32 of the 50 states and the District of Columbia as permitting a court to reform an overbroad employee noncompete, 8 as allowing deletion of the offending words alone, and 4 as refusing both. The same clause can be narrowed in one state and struck in another. That survey covers employee noncompetes, and the counts are Aline's tally of its per-jurisdiction entries rather than a published total.
severability
When will a court refuse to sever a provision?
The usual test is whether the unenforceable performance was an essential part of the agreed exchange. If it was, the court is unlikely to sever it and enforce what is left. The Restatement rule also withholds itself from a party that engaged in serious misconduct.
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What if removing the provision leaves a deal that no longer makes sense?
A plain severability clause can leave you bound to a remainder that no longer reflects the deal you priced. Some contracts add a proviso protecting the economic substance of the transaction, though only 15 of the 500 contracts studied used that formulation. Decide in the clause what happens when the remaining bargain stops working, for example a termination right or a duty to renegotiate.
severability
Does an entire-agreement clause affect severance?
It can cut against it. A court may read a bar on amendment as evidence that the parties never agreed to a modified version of the contract. One state supreme court has done so. Courts outside that state have not settled the point.
severability
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Related contract clause guides
More from Aline on drafting, negotiating, and managing commercial contracts.
- 355 of 500 (71%) commercial contracts studied included a severability clause, and 145 (29%) did not. Source: Uri Benoliel, "Contract Interpretation Revisited: The Case of Severability Clauses," 3 GW Bus. & Fin. L. Rev. 90 (2019), n=500 U.S.-law commercial contracts filed with the SEC.
- 32 of 51 jurisdictions are classified as permitting judicial reformation of an overbroad employee noncompete, 8 as permitting blue-pencil deletion only, and 4 as refusing both. The remaining 7 jurisdictions ban employee noncompetes outright, split the answer by employee tier, or have not decided. The survey covers employee noncompetes, not severability in commercial contracts, and the counts are Aline's tally of its per-jurisdiction entries because the survey publishes no totals. Source: Russell Beck, "Employee Noncompetes: A State-by-State Survey," Beck Reed Riden LLP, 21 January 2026, n=51 jurisdictions (50 states plus the District of Columbia).
What the public evidence leaves open
- Clause length ranged from 22 words to 230 words across the 355 severability clauses in the same sample.
- 15 of the 500 contracts (3%) conditioned survival of the remaining provisions on the economic or legal substance of the transaction not being affected in any manner materially adverse to either party. That measures one specific formulation, not the general idea of requiring the remainder to still work.
- The study concludes that severability clauses are not standardized boilerplate, finding that they "vary significantly both in form and substance." Its clause-content table documents that variation but publishes no frequency Aline can rely on.
- Some clauses direct a court to give an unenforceable term the narrowest reading that keeps it valid, and some say nothing about it. No public study reports how often either drafting choice appears.
- Some clauses preserve the valid remainder of the same provision when part of it fails, and some are silent on it. No reported frequency there either.
- Four jurisdictions are classified as refusing both reformation and blue-pencil deletion of an overbroad employee noncompete: Nebraska, Virginia, Wisconsin and Wyoming. Two of the four carry softening language in the survey's own entries.
- Texas and Florida run the other way by statute. Texas requires a court to reform an unreasonable covenant not to compete and enforce it as reformed, and limits the promisee to injunctive relief with no damages for breach before reformation. Florida requires a court to modify an overbroad restraint and grant only the relief reasonably necessary.
- The reformation, blue-pencil and red-pencil labels are not clean categories. Individual jurisdictions carry qualifiers, split treatment by employee tier, and different rules before and after statutory amendments.
- No public study measures how often clauses carry covenant-specific reduction language for duration, geography or scope, and none reports what share of published decisions applying a severability clause severed and enforced the remainder rather than voiding the agreement.
Public sources
- Uri Benoliel, "Contract Interpretation Revisited: The Case of Severability Clauses," 3 GW Bus. & Fin. L. Rev. 90 (2019). Internet Archive capture of the publisher PDF.
- Restatement (Second) of Contracts section 184, "When Rest of Agreement Is Enforceable" (1981). Read the section.
- Ramirez v. Charter Communications, Inc., 16 Cal. 5th 478 (2024), No. S273802. Read the opinion.
- Huskins v. Mungo Homes, LLC, S.C. Sup. Ct. Op. No. 28245 (filed 11 December 2024). Read the opinion.
- Russell Beck, "Employee Noncompetes: A State-by-State Survey," Beck Reed Riden LLP, 21 January 2026. Read the survey chart.
- Tex. Bus. & Com. Code section 15.51(c). Read the statute.
- Fla. Stat. section 542.335(1)(c). Read the statute.
Method note
The Benoliel study covers U.S.-law commercial contracts between sophisticated business entities, filed with the SEC as Form 8-K material definitive agreement exhibits between 14 February 2017 and 1 May 2019, located through Westlaw Sample Agreements. It is not a random sample of all commercial contracts, and it does not cover consumer, employment or non-U.S. contracting. Its listed contract types run to cooperation, agency, distribution, consulting or advisory, management services, marketing and administrative services, and those listed categories total 385 of the 500 contracts, so the table of types is not an exhaustive breakdown of the sample.
The 71% prevalence figure uses all 500 contracts as its denominator. The 22 to 230 word range uses the 355 contracts that contained a clause. The 3% economic-substance figure uses all 500. The study's clause-content table reports two drafting statements against the 355 base, and its printed rows do not reconcile with each other, so this page describes the variation that table documents and publishes none of its percentages.
The jurisdictional count covers employee noncompetes only. The survey states that it addresses only employee noncompetes and does not cover noncompetes arising from the sale of a business or in other contexts. It publishes no totals, so the 32 / 8 / 4 split is Aline's tally of its per-jurisdiction entries, and many of those entries carry qualifiers or split by date or employee tier. Read the count as how courts treat overbroad employee noncompetes, not as a measure of severability in commercial contracts.
The Benoliel citation resolves through an Internet Archive capture of the publisher PDF because the publisher's site and SSRN both block automated access. The Texas statute text comes from a public statutory mirror because the official Texas code site is a JavaScript application that automated requests cannot read.
Attorney review required. The rows below are drafting positions, not survey results. No public study measures how often commercial contracts take any of these positions, so do not read the market posture column as a measured rate.
| Issue | Market posture | Reasonable fallback | Push back hard |
|---|
| Narrow or delete | Say which one the court is asked to do rather than leaving the clause silent | Ask for reduction to the maximum enforceable extent, then deletion if reduction fails | Silence that hands the whole choice to the court |
| Unit of severance | Name what gets severed: the offending words, the sub-provision, or the whole provision | Confirm the valid remainder of a partly unenforceable provision survives | A clause that deletes an entire provision when a few words caused the problem |
| The remaining bargain | State what happens if removal leaves a bargain neither side would have signed | Add a termination right or a duty to renegotiate, keyed to material adverse effect on the economic substance of the deal | A categorical clause that keeps the remainder alive whatever removal does to the pricing |
| Duty to renegotiate | Give any renegotiation duty a deadline and a consequence | Set a fixed window, then a stated fallback if the parties do not agree | A bare good-faith duty to negotiate with no deadline and no consequence |
| Jurisdictional reach | Decide whether unenforceability in one jurisdiction knocks the term out everywhere or in that jurisdiction alone | Limit the effect to the jurisdiction that ruled, in multi-state and cross-border agreements | Silence in an agreement performed across several jurisdictions |
| Restrictive covenants | Check the governing state before adding duration, geographic and scope reduction language | Draft the covenant within the state's limits, then add reduction language where the state permits a court to reform | Reduction language treated as a safety net in Nebraska, Virginia, Wisconsin or Wyoming |
| Entire agreement and governing law | Read the severability clause against the entire-agreement and governing law clauses | Confirm the merger clause does not read as a bar on any modified version of the deal | Boilerplate sections assembled without checking them against each other |
