Legal Memorandum: Severance of Contractual Provision in FL

Issue: Under Florida law, under what circumstances may a contractual provision be severed from the main contract?

Area of Law: Business Organizations & Contracts
Keywords: Contractual provision; Severance
Jurisdiction: Florida
Cited Cases: 463 So. 2d 437; 543 So. 2d 1303; 289 F.3d 723; 879 So. 2d 649; 571 So. 2d 488
Cited Statutes: None
Date: 12/01/2010

Florida law is well established as to how a court determines whether a contractual provision can be severed*FN1 from the rest of the contract.

Under Florida law, to determine whether the Agreement permits severance of the remedial limitations provision, we apply the test set out in Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818, 821-22 (Fla.1953).  As the Florida Supreme Court explained there, “[w]hether a contract is … divisible depends upon the intention of the parties,” which “may be determined by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.”  Id. at 822 (citations and internal quotation marks omitted).


Manor Care Health Servs., Inc. v. Stiehl, 22 So. 3d 96, 100 (Fla. 2d DCA 2009).  “As a general rule, contractual provisions are severable, where the illegal portion of the contract does not go to its essence, and, with the illegal portion eliminated, there remain valid legal obligations.”  Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1024 (Fla. 4th DCA 2005).  Accord Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So. 2d 1095, 1097-98 (Fla. 2d DCA 2002) (stating general rule that clause can be severed if there is no interdependence between the clause sought to be severed and the other clauses of the agreement, and the clause sought to be severed is divisible and can be severed without affecting the parties’ […]

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