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Severability clauses

The guidance note on severability clauses provides expert analysis on the strategic role these clauses play in business and commercial contracts. Practitioners must understand how severability protects contracts from being wholly void if specific provisions are unenforceable. This document explores key legal principles, case law, and drafting considerations critical to safeguarding contractual validity.

Topics Covered

  • Provisions that may be affected by severability clauses
  • Legal principles governing severability
  • Key drafting considerations
  • Restraints of trade and severability

Essential Insights

  • Assess which contract provisions risk unenforceability and how severability clauses mitigate invalidity.
  • Consider complex case law distinctions on severability tests for illegal versus uncertain provisions.
  • Evaluate how courts interpret parties’ intentions and surrounding circumstances in severance decisions.
  • Recognise the nuanced application of severance in restraints of trade and related public policy issues.
  • Incorporate “cascading” restraint clauses to enhance enforceability through strategic drafting techniques.
  • Review precedent clauses to tailor severability provisions aligned with specific contractual risks.

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