The Severability of Restrictive Covenants clause addresses what happens when one or more restrictive covenants in a contract are found to be unenforceable or invalid. A severability clause typically states that if one covenant is struck down (for example, because it's overly broad or violates public policy), the remaining covenants will survive and continue to be enforceable. This is critical in restrictive covenant agreements because these provisions often contain multiple restrictions—on competition, geographic scope, duration, customer solicitation, and more—and a single defect shouldn't destroy the entire protective framework. Without a severability clause, a court might invalidate the entire covenant structure if even one provision is problematic, leaving the non-breaching party with zero protection.
The practical importance of this clause lies in risk allocation and enforceability preservation. A well-drafted severability clause can save a restrictive covenant agreement from complete failure. However, the clause must be carefully worded to avoid appearing to invite overreach; if a clause is so obviously unreasonable that it suggests the drafter was trying to sneak in unenforceable terms, courts may view the severability clause with skepticism or refuse to apply it. Additionally, some jurisdictions limit how much courts can modify or sever provisions, so severability clauses work best in conjunction with reasonable underlying terms.
Include a comprehensive severability clause in all restrictive covenant agreements that explicitly preserves the enforceability of remaining provisions if any single covenant is found invalid. Go further by adding language that authorizes courts to modify overly broad provisions rather than striking them entirely (incorporating Blue Pencil principles). Draft each covenant independently so that it can stand alone if necessary, and avoid making covenants interdependent or cascading. Finally, ensure that the severability clause itself is reasonable and not so broad that it appears to be an attempt to circumvent enforceability standards—courts are more likely to honor severability clauses that reflect genuine good-faith drafting.
Frequently Asked Questions
What does this clause mean in simple terms?
The Severability of Restrictive Covenants clause addresses what happens when one or more restrictive covenants in a contract are found to be unenforceable or invalid. A severability clause typically states that if one covenant is struck down (for example, because it's overly broad or violates public policy), the remaining covenants will survive and continue to be enforceable.
Why should I care about this clause?
This is critical in restrictive covenant agreements because these provisions often contain multiple restrictions—on competition, geographic scope, duration, customer solicitation, and more—and a single defect shouldn't destroy the entire protective framework. Without a severability clause, a court might invalidate the entire covenant structure if even one provision is problematic, leaving the non-breaching party with zero protection.
What are my options?
The practical importance of this clause lies in risk allocation and enforceability preservation. A well-drafted severability clause can save a restrictive covenant agreement from complete failure.
How does this affect small businesses?
However, the clause must be carefully worded to avoid appearing to invite overreach; if a clause is so obviously unreasonable that it suggests the drafter was trying to sneak in unenforceable terms, courts may view the severability clause with skepticism or refuse to apply it. Additionally, some jurisdictions limit how much courts can modify or sever provisions, so severability clauses work best in conjunction with reasonable underlying terms.