What severability means
A severability clause is an instruction about what happens if part of the contract fails.
Contracts sometimes contain provisions a court will not enforce: a restraint of trade that is too wide, a clause excluding liability the law does not permit to be excluded, a term contrary to a statute.
Without a severability clause, the question is whether the offending provision can be removed leaving a coherent agreement, or whether it is so central that the whole contract falls with it.
The clause answers that in advance. It provides that if any provision is held invalid, illegal or unenforceable, that provision is severed and the remainder continues in full force. Better drafted versions go further, requiring the parties to replace the severed provision with a valid one achieving as nearly as possible the same commercial result.
It is boilerplate, it costs nothing, and its absence is occasionally expensive.
How it is used
Two kinds of clause make severability worth having.
Restraint of trade. Nigerian courts, following the common law, will not rewrite an unreasonable restraint into a reasonable one. Where a non compete is too wide, it generally falls entirely. A severability clause, combined with careful drafting that separates the restraint into distinct obligations, can allow the unreasonable parts to be removed while the reasonable ones survive.
That is why well drafted restrictive covenant clauses list separate obligations, each with its own duration and area, rather than one sweeping sentence. Separate obligations can be severed. A single sentence cannot.
Exclusion and limitation clauses. Where part of an exclusion is not permitted, severability allows the remainder to operate.
The drafting habit that makes it work is structural: express distinct obligations as distinct provisions. A court applying a blue pencil approach removes offending words rather than redrafting, so the clause has to be capable of surviving the deletion.
A severability clause in a contract of one long paragraph has nothing to sever.
Key features
- Provides that an invalid provision is removed and the rest survives
- Standard boilerplate in commercial contracts
- Most valuable for restraint of trade and exclusion clauses
- Works best where obligations are drafted as separate provisions
- Better versions require replacement with a valid equivalent provision
- Cannot save a contract whose central obligation is unenforceable
How this works in Nigeria
The clause earns its keep in Nigerian employment and commercial agreements for the same reason it does elsewhere: courts strike down overreaching provisions rather than moderating them.
A non compete covering the whole of Nigeria for three years, applying to any activity connected with the employer's sector, is likely to fail. An employer who drafted three separate obligations, a twelve month non compete limited to Lagos and to the specific line of business, a twelve month non solicitation of named clients, and an indefinite confidentiality obligation, is in a far better position, because the failure of one does not carry the others.
That structure plus a severability clause is the practical answer to Nigerian restraint of trade risk.
The second Nigerian application is consumer terms. Where a clause purports to exclude statutory consumer protections under the Federal Competition and Consumer Protection Act, that clause is exposed, and severability keeps the rest of the terms operating rather than leaving the business with nothing.
The limitation is worth stating plainly. Severability protects the contract from a bad clause. It does not protect a contract whose core is unenforceable. Where the illegal element is the main obligation, severing it leaves nothing to enforce, and the agreement fails whatever the boilerplate says.
Severability vs entire agreement vs no waiver
Three boilerplate clauses at the back of a contract, each addressing a different failure mode.
Severability addresses invalidity. If a provision turns out to be unenforceable, it is removed and the rest survives.
An entire agreement clause addresses everything said before signing. It confines the contract to the document, so promises made in negotiations do not form part of it.
A no waiver clause addresses conduct after signing. It provides that failing to enforce a right on one occasion does not give it up for the future.
All three are ignored during negotiation and all three decide outcomes during disputes. A party reading a contract for the first time should read the last two pages as carefully as the first two, because that is where the answers to what happens when things go wrong actually live.
Limits and risks
Severability cannot rescue a contract whose fundamental obligation is unenforceable. Removing the core leaves nothing.
It also does not permit a court to rewrite. The blue pencil approach deletes; it does not moderate, so a clause drafted as one indivisible obligation cannot be partially saved.
Courts will also not sever where doing so would change the nature of the bargain the parties made.
And the clause offers no protection against a provision that was simply badly negotiated rather than legally invalid. A bad deal remains a bad deal.
Worth knowing
Draft restrictive covenants as separate numbered obligations, each with its own duration and geography, rather than as one long sentence. A severability clause can only remove what is capable of being removed, and a single sweeping restraint either stands or falls in its entirety.
Questions people ask
What is a severability clause?
A term providing that if any provision of the contract is held invalid or unenforceable, that provision is severed and the remainder continues in full force.
Why does it matter?
Because without it, an unenforceable provision can put the whole agreement at risk. It matters most where the contract contains restraint of trade or exclusion clauses, which are the provisions most often struck down.
Does it let a court rewrite an unreasonable clause?
No. Nigerian courts apply a blue pencil approach: they delete offending words rather than redrafting. A clause can only be partially saved if it was drafted as separable obligations.
How should restrictive covenants be drafted?
As separate numbered obligations, each with its own duration and geographical area, so the failure of one does not carry the others. One sweeping sentence either stands or falls entirely.
Can severability save any contract?
No. Where the core obligation is unenforceable, severing it leaves nothing to enforce and the contract fails whatever the boilerplate says.
Is it worth negotiating?
It is standard and rarely contentious. The valuable work is in the drafting of the clauses it protects rather than in the severability clause itself.