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?
On crystal balls and unexpected inequities
The JC’s general concerns about boilerplate are here writ large.
So, firstly, an illegality speaks to some serious misapprehension on the parties’ part as to the legitimacy of what they are agreeing to do. Even if their enterprise was kosher when they agreed it, we must presume, giving their intelligence the benefit of the doubt, that they didn’t seriously expect a country’s commercial courts to continue 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 — in which case, what value a severability provision? — but even if it is not, it will be quite the stroke of luck if the lost benefit from the illegal, severed, part of the contract falls equally between the 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 didn’t have a crystal ball, resolving this at the outset of a contract, with a severability clause seems cavalier. Yet this is what this boilerplate seems to do
Lady Macbeth
There is an element, too, of the lady protesting too much here: why would you enter a contract if you thought part of it might be illegal? What kind of operation are you running?
If the choice is between blindly allocating unforeseeable losses at the start of the relationship with a severability clause, and hoping the parties can be adult enough to come together in good faith to sort out a compromise as and when the unforeseeable becomes a reality later — trusting each other, in other words, to be good eggs and not dicks — then the JC knows where he’d rather be, and who he would rather be trading with.