Severability Clause
Keeps the rest of the contract valid if one provision is held unenforceable, and provides for its replacement.
What it is
A severability clause provides that if a court finds one provision invalid or unenforceable, the remaining provisions stay in force, and the void term is replaced by a valid one closest to the parties' intent. Dutch law addresses this through partial nullity under BW 3:41.
Why it matters
It prevents one defective clause from sinking the whole contract. Combined with a conversion (conversie) mechanism, it keeps the deal alive and steers any replacement term toward what the parties originally intended.
How to apply it
- State that invalidity of one clause does not affect the others.
- Require the parties to replace a void clause with a valid, economically equivalent one.
- Align it with BW 3:41 partial nullity and conversion under BW 3:42.
- Recognise that severance fails if the void term is essential to the bargain.
Negotiation tips
- • Add a duty to renegotiate in good faith to replace the struck-out provision.
- • Identify any clause so fundamental that its invalidity should end the contract.
Common pitfalls
- • Assuming severance always works; BW 3:41 makes it depend on the contract's coherence.
- • No replacement mechanism, leaving a gap where the void clause stood.
Legal references
- BW 3:41 Partial nullity (partiële nietigheid) Dutch law
- BW 3:42 Conversion of void acts (conversie) Dutch law
Unless marked otherwise, references are to Dutch law (Burgerlijk Wetboek, the Dutch Civil Code); EU instruments such as the GDPR apply across the EU. This is general information, not legal advice. Other jurisdictions treat these concepts differently. Verify the current text and your situation with a qualified lawyer.
Frequently asked questions
Common questions about this clause.