Severability
Profound ontological uncertainty writ large. If one aspect of my contract is illegal, what does that mean for the rest of it?
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Boilerplate Anatomy™
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This is really a way of looking at the question of illegality, the general proposition for which is that a contract which obliges its participants to do illegal things is void and unenforceable as a matter of pubic policy.
So if you hire an assassin to kill your spouse and the assassin takes your money but fails to, don’t expect her majesty’s courts to grant you damages, much less the courts of equity to award specific performance.
Straightforward enough. But, still hypotheticals fester, at least in the minds of assiduous draftspeople the world over. What if only a teeny little bit of it is illegal? Can I still get on with the rest of it? And if, otherwise, not, will it help if I say in my contract that any bit which later becomes illegal — or even turns out to have been illegal the whole time — doesn’t somehow count any more, so I can carry on with the rest of it?
The JCs general concerns about boilerplate are here writ large. So, firstly, this speaks to some serious misapprehension on the parties’ part as to the legitimacy of what they are agreeing to do. We must presume, giving them the benefit of the doubt, that they didn’t seriously expect a country’s commercial courts to uphold an enterprise that its criminal courts would put people in jail for. This misapprehension might be fundamental enough to undermine their meeting of minds in the first place, but if it is not, then it will be quirte tghe stroke odf luck of the benefit of the severed part of the contract falls equally between the two parties. Odds are, that is to say, that the severance will favour one party over the other, in a way that, logically, they cannot predict before it happens.
Say I have agreed, for a monthly fee of ten pounds, to provide you with five services, one of which later transpires to be illegal. The other four services remain valid, as does your obligation to pay me the agreed monthly retainer. So is the contract simply severed to cut out the illegal service? Must you now pay me ten pounds for four services?
Equity says there should be some adjustment of the commercials; as we don’t have a crystal ball, resolving this at the outset of a contract, with a severability clause seems cavalier.