severability clause

Which translation, when

Why

German law starts from the opposite presumption to the clause: § 139 BGB says that if part of a legal transaction is void, the whole of it is void, unless the parties would have done the deal without the void part. The salvatorische Klausel is the drafting answer, it declares that they would, keeps the remainder standing and usually adds a duty to replace the invalid term with the closest valid one. Standard terms play by a different book, § 306 Abs. 1 BGB keeps the contract alive by statute when a clause falls, so inside AGB the provision does far less work than the English reader assumes, and no clause of any name revives a term the AGB rules have struck down. The name matters because it is settled, a German lawyer scans for salvatorische Klausel the way an English one scans for severability, and an improvised label interrupts exactly that scan.

Typical mistakes

• Trennbarkeitsklausel is the word-for-word construction machine output actually produces, no German contract carries it, the settled name is salvatorische Klausel.
• Inside standard terms the clause cannot rescue a forbidden term, German law strikes the term and keeps the contract by statute, § 306 Abs. 1 BGB, and replacement wording does not soften AGB control.
• German practice reads the clause in two halves, Erhaltungsklausel and Ersetzungsklausel, keeping the rest and filling the gap, a translation that drops the replacement half loses the part German drafting values most.

What matters

Long bespoke contracts are where the clause earns its keep: one void term in an individually negotiated agreement triggers the presumption of § 139 BGB, all void, and the salvatorische Klausel is what turns that presumption around. The English reader who files the provision under harmless boilerplate is importing a common-law default, in a German contract the clause is doing structural work.

Examples