The three-stage test

Severance under English law is governed by the three-stage test in Beckett Investment Management Group Ltd v Hall [2007] EWCA Civ 613, as restated by the Supreme Court in Tillman v Egon Zehnder Ltd [2019] UKSC 32. The unenforceable provision must be (i) capable of removal by deletion without modifying the rest of the wording - the blue-pencil test; (ii) the remainder must continue to be supported by adequate consideration; and (iii) removal must not generate a major change in the overall effect of the relevant obligations, with the focus on the legal rather than the practical effect of what survives, and the burden on the party seeking to enforce.

Tillman was formally a restraint-of-trade decision, but the Supreme Court grounded its analysis in the general doctrine of severance and overruled Attwood v Lamont [1920] 3 KB 571, which had treated severance narrowly. The reasoning is therefore widely treated as applying outside the employment context, although it remains formally an employment-restraints case.

Deletion, not rewriting

The defining feature of the English position is that severance operates by deletion only. The court can strike out offending words if what remains still reads as a coherent and adequately-supported obligation, but it will not rewrite the provision or substitute a narrower one to save it. A clause drafted so that the invalid part cannot be cleanly removed - because the valid and invalid elements are interwoven in a single phrase - may fail severance altogether.

The drafting response is to structure obligations so that potentially vulnerable elements can be excised cleanly, and to make the severability clause explicit that an invalid provision is deemed deleted to the extent necessary while the remainder continues in force.

The cross-border contrast

Civil-law systems reach partial invalidity through different machinery, and the result should not be assumed to be uniformly more generous. Section 139 of the German BGB in fact starts from the opposite default: if part of a transaction is void, the whole is void unless it can be assumed the parties would have concluded it without the invalid part. French law (Article 1184 of the Code civil) is framed the other way - the contract is avoided in full only if the invalid clause was a determining element of the parties' commitment; otherwise it is maintained. Russian law (Civil Code Article 180) is structurally similar to the German saving rule.

The unifying point is not that civil-law systems are more permissive, but that they often reach the question differently and some allow forms of judicial modification that English law does not. A cross-border severability clause should therefore combine English blue-pencil mechanics with language that travels - permitting modification rather than deletion where the forum's law allows it, and adding a good-faith duty to renegotiate a substitute provision.

Illegality mid-contract and the renegotiation duty

The severability clause also matters where a post-execution event - a new sanctions designation, a regulatory change, a licensing requirement - renders a provision illegal mid-contract. The clause needs to interact cleanly with illegality, frustration and the overriding mandatory rules that can apply in the enforcement forum, and to connect to any suspension, wind-down and termination mechanics in the contract.

A severability clause without a renegotiation duty can leave the parties with a contract that no longer reflects their bargain once a provision is struck out. A duty to negotiate in good faith towards a substitute provision that, as nearly as possible, gives effect to the original commercial intention is the mechanism that protects the bargain - though under English law such a duty needs to be tied to a sufficiently certain objective to be enforceable, so it is a practical safeguard rather than a complete answer.

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Practical checklist

  • Draft so a vulnerable element can be removed by deletion alone - an English court will not rewrite (Tillman).
  • State that an invalid provision is deemed deleted to the extent necessary while the remainder continues in force.
  • For cross-border deals, allow modification rather than deletion where the forum's law permits it.
  • Add a good-faith duty to renegotiate a substitute provision, tied to the original commercial intention.
  • Connect the severability clause to illegality, frustration and any suspension or termination mechanics.
  • Do not assume civil-law forums are more generous on partial invalidity (BGB s.139 leans the other way).

This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.

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