Many contracts have a severability clause, which states that even if some part of the contract is thrown out or unenforceable, the remainder of the contract remains in effect. For example, "Contract 1" might say that you cannot do (A), (B), (C), or (D), and Contract 1 also has a severability clause. If a court found that it is illegal to ban people from doing (C), Contract 1 would still prohibit you from doing (A), (B), and (D).

But supposing "Contract 2" does not have a severability clause - it just says you can't do (A), (B), (C), or (D), and there is nothing in the contract about what happens if part of the contract is unenforceable. As before, a court finds that you can't ban people from doing (C). Would this result in the whole contract being thrown out or just the (C) part?

I'm not sure if this is state-specific, but if I need to specify a state, let's say Oregon.

(Note: This is not a duplicate of this because that question only asks about the UK and Germany.)

1 Answer 1


If a contract doesn't have a severability clause, could it still be severable?

Yes. Severability is a question of law determined by the court based upon what the court finds to be the intent of the parties regarding whether the term to be severed is so essential to the deal that enforcing the balance of the contract without the severed term would be unfair. This can be done even if the contract is silent on the issue.

A severability clause helps the court to determine the intent of the parties when making this evaluation but isn't controlling in most cases, it is just one more piece of evidence regarding the intent of the parties regarding this issue.

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    Indeed, to be clear, even if a con tract includes a severability clause, a court might find some elements of the contract so essential that they cannot be severed, and if they are found to be unlawful or unenforceable, the whole contract may be rendered void. Commented May 21, 2022 at 1:36

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