Chapter 7 SEVERABILITY CLAUSES

JurisdictionNew York

Chapter Seven

Severability Clauses

I. Severability Clauses: a Valid Severability Clause Prevents Failure of Entire Agreement

A severability clause is a provision that states in the event that one or more clauses in an agreement are unenforceable, the balance of the agreement will retain its vitality. The 1966 Divorce Reform Law (DRL) revolutionized divorce law in New York State. For the first time, under DRL § 170(6), known as the conversion divorce, a spouse who has lived separate and apart from the other and has substantially complied with the terms of a separation agreement could bring a "no fault" action for divorce.2074 A barrier to a conversion proceeding arises when one or more of the provisions of the agreement is void or otherwise unenforceable. Such a defense is, however, dismissible without further investigation if the agreement contains a severability clause, thereby preserving the agreement's vitality as a ground for divorce. In essence, the clause prevents an invalid provision from vitiating the balance of that agreement and against unintended results.2075

Where an agreement consists in part of an unlawful objective and in part of lawful objectives, the court may sever the illegal aspects and enforce the legal ones, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.2076 Courts will be particularly ready to sever the illegal components and enforce the other components of a contract where the injured party is less culpable and the other party would otherwise be unjustly enriched by using his own misconduct as a shield against otherwise legitimate claims.2077

Whether a contract provision is entire or severable is generally a question of intention to be determined from the language employed by the parties viewed in the light of the circumstances surrounding them at the time they signed the agreement.2078

Significantly, a severability clause works in one direction only—to validate the balance of an agreement which might otherwise have been unenforceable absent the severability clause. The converse is not true; that is, severability clauses may not construe specific provisions to be independently enforceable when an agreement itself, rather than any of its components, is brought to an end.2079 This section should be read in conjunction [§ 1.42], XXIV. "Public Policy and Agreements" in Chapter 1, Agreements in General: Principles of Contract Doctrine, [§ 42.6], III.A. "Lawful and Unlawful Objectives: Distilling Lawful From Unlawful Purposes" in Chapter 42, Express Oral Agreements Between Cohabiting Partners.

Pursuant to the parties' agreement in Charap v. Willett,2080 the husband had agreed...

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