Severability

As a severability clause (Latin salvatorius " preserving ", " preserving " ) in the right language refers to the provision ( " provision " ) of a contract work, the legal consequences are to occur when individual parts should prove to be invalid or unenforceable it turns out that the contract does not cover matters that would actually have to be regulated. The severability clause has the purpose of a partially invalid or unenforceable contract, but in particular to the economic success of the agreement is to cause to maintain as far as possible.

Germany

Exemplary Formulation

Shortened form: If any provision of this Agreement is invalid, the validity of the remaining provisions shall not be affected. The Parties undertake to take one of these regulation as closely as possible to effective regulation in place of the ineffective provision.

Clause 1 of this clause ensures that the ineffectiveness of a single provision of the contract only partial invalidity, but not annulment of the Agreement as a whole has. According to § 139 BGB namely the partial nullity of a contract generally leads to the invalidity of the whole agreement, unless the parties have concluded the agreement without the invalid part. Exactly this - namely the intention of the parties to adhere to the agreement even without the invalid part - brings the first sentence of the above severability clause expression. The applicability of § 139 BGB should be explicitly excluded (p. 3), since only so effective its legal consequences can be prevented.

Sentences 2 and 3 lay in principle fixed only the principles of contractual interpretation that generally apply even without express provision in the contract. From a legal perspective, these rates are, therefore, strictly speaking, superfluous. For the information of parties it is nevertheless useful to include these statements in the contract.

Use in Conditions

Not useful, however, are severability clauses to ensure the effectiveness of general terms and conditions ( GTC). First of all is the fact that in any case the regime to these according to the German Civil Code, that the invalidity of a clause, the effectiveness of the rest does not affect § 306 para 1 BGB - the desired legal consequence occurs anyway.

In terms of replacing with a valid provision (p. 2) the severability clause, however, collides with the basic prohibition of retaliatory preserving reduction which effects in connection with the in § 307 paragraph 1 sentence 2 BGB codified transparency that an ineffective clause is not can be replaced by the court by another, just effective clause: either the clause is effective, or it is completely ineffective and it is the basic rule of § 306 paragraph 2 BGB, which require that an invalid clause shall be replaced by the statutory scheme. A different severability clause is not permitted even according to § 307 BGB.

§ 306 para determined 3 BGB, that exceptionally a contract is completely ineffective when a page would be penalized as unreasonable by omission of individual clauses that you may be expected to not adhere to the contract more: Finally, the clause is invalid for another reason. In this case, the invalidity of the clause actually leads to the invalidity of the contract. A severability clause, which differs from 3 BGB § 306 para would just constitute an unreasonable disadvantage and is therefore in accordance with § 307 BGB also ineffective.

To protect Conditions of a severability clause is therefore not useful. Either it gives the exact content of § 306 BGB again ( then it is superfluous ), or differs from § 306 BGB ( then it is because of § 307 BGB ineffective).

Austria

For the Austrian legal field - however limited only to consumer transactions - essentially the same thing. There is no longer recognizable by a severability clause for the average consumer, what actually is now, it contradicts the principle of transparency of § 6 para 3 Consumer Protection Act.

Switzerland

In Switzerland, a severability clause is basically redundant, because its regulatory target is regulated in Article 20, paragraph 2 OR.