A protective clause, also known as a severability clause, is a contractual provision that is intended to ensure the validity of the entire contract in the event that individual contractual provisions are invalid or unenforceable. It is an important contract drafting tool that is used in many areas of commercial law, including the IT and media industry.

Typical formulation:

A typical protective clause could read as follows:
“Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, this shall not affect the validity of the remainder of the contract. The invalid or unenforceable provision shall be replaced by the valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the invalid or unenforceable provision.”

Legal basis:

1. SECTION 139 BGB: This provision stipulates that if part of a legal transaction is void, the entire legal transaction is void if it cannot be assumed that it would have been carried out without the void part.

2. freedom of contract: The parties may deviate from the statutory provision of Section 139 BGB by means of a protective clause.

3. general terms and conditions law: When used in general terms and conditions, protective clauses are subject to content review in accordance with §§ 305 et seq. BGB.

Functions of the safeguard clause:

1. preservation of the contract: The clause is intended to prevent the entire contract from becoming ineffective if individual provisions are ineffective.

2. replacement of ineffective clauses: It provides that ineffective provisions are to be replaced by effective ones.

3. interpretation aid: The clause provides the courts with a guideline for supplementary interpretation of the contract.

Special features in the IT and media industry:

1. complex contracts: In the IT and media industry, contracts are often complex and extensive, which increases the risk of ineffective individual provisions.

2. rapid technological development: Rapid technological development can lead to contractual provisions quickly becoming obsolete or ineffective.

3. international contracts: In the case of cross-border contracts, different legal requirements in different jurisdictions can lead to problems.

Limits and risks:

1. no “rescue” of grossly unfair contracts: Case law sees limits to the effectiveness of protective clauses, particularly if the contract as a whole is grossly unfair.

2. no circumvention of mandatory law: Safeguard clauses cannot be used to circumvent mandatory statutory provisions.

3. general terms and conditions control: Protective clauses used in general terms and conditions are subject to content control and must not unreasonably disadvantage the contractual partner.

Design recommendations:

1. precise wording: The clause should be formulated clearly and unambiguously.

2. adaptation to the individual case: The protection clause should be adapted to the specific needs and risks of the specific contract.

3. supplementary provisions: It may be useful to agree procedures for adapting or renegotiating the contract in the event of invalid provisions.

4. consideration of the applicable law: In the case of international contracts, the safeguard clause should be coordinated with the applicable law.

Conclusion:

Safeguard clauses are an important instrument for securing contracts in the IT and media industry. They can help to ensure the stability and feasibility of contracts, even in complex and rapidly changing legal and technological environments. However, they are not a panacea and cannot exclude all legal risks.

Companies should consider protection clauses as part of a comprehensive contract drafting strategy. They do not replace the careful examination and formulation of individual contractual provisions, but rather supplement them. However, a well-drafted protection clause can provide valuable services in the event of a dispute and help to maintain important business relationships.