Severability Clause

A severability clause is a contractual provision stating that the rest of the contract is to remain valid if individual provisions prove to be invalid. It often also contains a replacement provision under which the invalid provision is to be replaced by a valid one that comes as close as possible to what was intended.

A Standard Paragraph at the End of the Contract

The clause appears in almost every written contract, usually in the final section under a heading such as “Final Provisions.” It is also customary in a model contract and, on its own, is not a warning sign. Its purpose is understandable: without it, the entire contract could, in case of doubt, be invalid under the law if only part of it is defective.

The name comes from the Latin word for saving or preserving. What is meant to be saved is the contract as a whole, not the individual defective provision. This distinction is key to understanding it, because in practice the clause is often read as if it could somehow cure every problematic provision.

What It Means for Payment and Rights

Suppose a contract contains an excessively high contractual penalty or an overly broad non-compete clause, and a court considers that provision invalid. The severability clause then ensures that the rest of the contract remains in force: the payment is still owed, the granted usage rights remain granted, and the restricted-platform list continues to apply.

This is usually beneficial for you. As a rule, you do not want your entitlement to payment to disappear along with a defective penalty clause. Conversely, however, you also cannot rely on using one invalid clause to get rid of the entire contract and therefore also of the grant of rights.

What It Cannot Do

A severability clause does not make an invalid provision valid. Anything that violates mandatory law or unfairly disadvantages you remains invalid, regardless of what appears at the end of the contract.

In particular, for pre-formulated contracts used by a production for many shoots, the rules on General Terms and Conditions apply. Under these rules, an impermissible clause is generally not reduced to the maximum extent that would just be permissible; instead, the statutory provision takes its place. Replacement clauses intended to circumvent exactly that rule are themselves vulnerable to challenge in such contracts.

Nor does it cure a contract whose core is invalid. For example, if there is no valid consent to publication, even the most carefully drafted final paragraph cannot save the exploitation.

The Right Way to Read It

• Read the clause, but focus your review on the provisions before it, because that is where the substance is determined.
• Do not sign a provision expecting it to be invalid anyway. Whether it is invalid is decided by a court in the event of a dispute, and until then it can be enforced against you.
• Have questionable clauses deleted or amended before signing instead of hoping that the final paragraph will solve the problem.

The article The Model Contract, Paragraph by Paragraph shows which sections of a model contract deserve the most attention. This entry puts the term into context and does not replace legal advice.