I noticed that Corporate Counsel has published another article by Eric Fishman, a partner at Pillsbury. (This time his co-author is one of his partners, Robert James.) It’s entitled Drafting a Better Severability Clause; go here for a copy. (Go here and here for my posts about two other articles by Mr. Fishman.)
This most recent article provides basic but helpful background information on severability provisions. In terms of substance, what caught my eye was the discussion of how you deal with the fact that “the invalidity of one key provision can result in an exchange materially different from the bargain initially struck.” My interim severability language (here) says in effect that the parties intend that if adjusting a provision would mess with the basic deal, the entire contract should be held unenforceable. By contrast, the provision included in the Corporate Counsel article states that “the Party adversely impacted shall be entitled to compensation for such adverse impact.” I’d be interested to hear what you think of those two different approaches. (And isn’t the word “compensation” an odd choice?)
Beyond that, I have two general observations:
First, one point of the marketplace of ideas is that through informed debate, you can build on the other guy’s ideas. And it helps consumers in the marketplace of ideas if you do so—it makes it easier for them to assess what you’re offering. So why not, for example, allude to how one’s analysis compares to some aspect of the analysis of severability in Negotiating and Drafting Contract Boilerplate?
And second, the language used in the provision proposed in the Corporate Counsel article is hard-core traditional legalese. There’s no reason for it. I’m not going to critique this article in detail, as it would take too long and be too boring, but it did inspire me to do this post about use of the word serious in contracts.