Severability clause

The severability clause, also known as the “preservation clause,” is an important element in contract drafting. It regulates the legal consequences if individual parts of the contract prove to be invalid or unenforceable, or if the contract does not regulate issues that should have been regulated. The main purpose of a severability clause is to maintain as far as possible a partially ineffective or unenforceable contract, but in particular the economic success which the contract is intended to achieve.

A typical formulation of a severability clause could look as follows: “Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. 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.”

It is important to note that severability clauses in general terms and conditions (GTC) are not always useful. In Germany, for example, the rule that the invalidity of a clause does not affect the validity of the rest applies to GTCs anyway. Furthermore, a severability clause that deviates from this provision may itself be invalid.

In Austria, the same applies in principle, but only for transactions between entrepreneurs. For consumers, a severability clause, if it is not clear and understandable, may violate the transparency requirement and thus be void.

In Switzerland, a severability clause is in principle superfluous, since its regulatory objective in OR Art. 20 para. 2 is regulated by law.