Contractual severance: a unified approach?

Contractual severance is an important and frequently litigated issue that has received limited academic attention. It is also difficult. This article reviews the case law on severance at common law of contractual provisions void for uncertainty and those unenforceable for illegality. It considers what tests are applied by the courts and what lies behind those tests. It asks whether the approach is different, in form or substance, in respect of uncertain and illegal contractual provisions and, if so, whether it should be. And it argues that the law would benefit from a single, unified approach to contractual severance, which is flexible enough to permit consideration of all relevant circumstances. On that basis, the article proposes an approach to severance applicable to all contracts.