In contractual disputes, particularly breach of contract cases, a common issue that arises is whether the underlying contract is even enforceable. A prudent attorney will determine if there are any substantive or procedural deficiencies which can sink the contract. Just because one specific section of a contract is void or unenforceable, however, does not necessarily mean that the entire contract fails. For example, if one provision is substantively unconscionable or vague and ambiguous, the remaining portions of the contract may survive. The decision by a Court as to whether to strike the remaining portions of a contract is often referred to as a severability analysis (i.e., whether to cut/sever the offending portions of the contract and to leave the rest intact or to throw out the entire agreement).
Whether a contract is severable depends on the circumstances of the case and is largely a question of the contracting parties’ intent. Swain v. Auto Servs., Inc., 128 S.W.3d 103, 108 (Mo. Ct. App. 2003). If an unenforceable term is essential to the entire agreement, then it may render the remainder of the agreement unenforceable. Id. For these reasons, contracts will often include standard boiler plate provisions that state something like the invalidity of one or more portions of this agreement shall not affect the validity of the remainder hereof. The absence of a severability clause tends to indicate that a contract is entire and not severable. Hays v. Mo. Highways & Transp. Comm’n, 62 S.W.3d 538, 542 (Mo. Ct. App. 2001).
Severability clauses do not just exist in contracts. Federal and state legislation will almost invariably include such language so that an entire Act/Bill is not struck down.
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