Severability clause
As a severability clause ( lat. Salvatorius "preserving", "preserving") is the term (" clause ") of a contract , which regulates the legal consequences if individual parts of the contract should prove to be ineffective or impracticable or it turns out that the treaty does not regulate issues that should have been regulated. The purpose of the severability clause is to maintain as far as possible a partially ineffective or unenforceable contract, in particular the economic success that the contract is intended to bring about.
Colloquially, "severability" is also called preventive protection.
Germany
Exemplary formulation
- “Should individual provisions of this contract be ineffective or unenforceable or become ineffective or unenforceable after the conclusion of the contract, the validity of the rest of the contract remains unaffected. The ineffective or unenforceable provision shall be replaced by an effective and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the ineffective or unenforceable provision. The above provisions apply accordingly in the event that the contract turns out to be incomplete. "
Abbreviated form: Should a provision of this contract be ineffective, the effectiveness of the remaining provisions will not be affected. The parties undertake to replace the ineffective provision with an effective provision that comes as close as possible to this provision.
Clause 1 of this clause ensures that the ineffectiveness of an individual provision of the contract only results in partial invalidity , but not the invalidity of the entire agreement. According to § 139 BGB , the partial invalidity of a contract generally leads to the ineffectiveness of the entire agreement, unless the contracting parties would have concluded the agreement without the ineffective part. Exactly this - namely the will of the parties to adhere to the agreement even without the ineffective part - expresses the first sentence of the above severability clause.
Sentences 2 and 3 in principle only stipulate the principles of the supplementary interpretation of the contract , which apply generally even without express provision in the contract. Strictly speaking, these sentences are therefore superfluous from a legal point of view. In order to inform the contracting parties, it is nevertheless useful to include these statements in the contract.
Application to terms and conditions
However, severability clauses are not useful in order to ensure the effectiveness of general terms and conditions. First of all, this is due to the fact that according to the German Civil Code, the regulation applies anyway that the ineffectiveness of a clause does not affect the effectiveness of the rest of Section 306 (1) BGB - the desired legal consequence occurs anyway.
With regard to the replacement by an effective regulation (p. 2), however, the severability clause collides with the fundamental prohibition of the validity-preserving reduction , which also in connection with the transparency requirement codified in § 307 para. 1 p. 2 BGB means that an ineffective clause does not can be replaced by the court with another, just effective clause: either the clause is effective or it is completely ineffective and the basic rule of Section 306 (2) BGB applies , according to which an ineffective clause is replaced by the statutory regulation. A severability clause that deviates from this is not permitted even under Section 307 of the German Civil Code (BGB).
Finally, the clause is ineffective for another reason: Section 306 (3) of the German Civil Code (BGB) stipulates that, as an exception, a contract becomes completely ineffective if one side would be so unreasonably disadvantaged by the elimination of individual clauses that it can no longer be expected to adhere to the contract. In this case, the ineffectiveness of the clause actually leads to the ineffectiveness of the contract. A severability clause that deviates from § 306 Paragraph 3 BGB would represent an unreasonable disadvantage and is therefore also ineffective according to § 307 BGB.
A severability clause does not make sense to protect general terms and conditions. Either it reproduces exactly the content of § 306 BGB (then it is superfluous) or it deviates from § 306 BGB (then it is ineffective because of § 307 BGB).
Austria
In principle, the same applies to Austrian law, albeit limited only to business between entrepreneurs. For consumers in the area of application of the Austrian Consumer Protection Act, a different clause can, depending on the type and content of its drafting, contradict the transparency requirement of Section 6 Paragraph 3 of the Consumer Protection Act and thus a severability clause if the average consumer can no longer recognize what actually applies be void.
Switzerland
In Switzerland, a severability clause is fundamentally superfluous because its regulatory objective is regulated by law in OR Art. 20, Paragraph 2.
Individual evidence
- ↑ cf. OGH, judgment of October 11, 2006 - 7 Ob 78 / 06f ( legal sentence RS0122045 on RIS ).
