Survival clauses: the five patterns a reviewer should look for

A survival clause is usually one sentence, usually in the last three pages, and usually read in the last three minutes. It decides which obligations continue after the contract ends. When it is wrong, nobody notices until the contract has ended, which is precisely when it is too late.

In our review data, survival issues are not the most common flag. They are, however, among the most frequently accepted flags: when Review raises one, the reviewer acts on it roughly four times in five, which is well above the average across clause types. We read that as a sign that reviewers know these clauses matter and are glad of the prompt.

Here are the five patterns we see most often, what each one does, and how Review handles it.

1. The orphaned obligation

An obligation that plainly needs to outlast the contract is not listed in the survival clause and does not state its own survival.

The usual suspects are confidentiality, the indemnities, limitation of liability, governing law and dispute resolution, and any post-termination restrictive covenant. A confidentiality clause that does not survive is close to worthless; a limitation of liability that does not survive leaves the party exposed on claims brought after termination for breaches before it.

How Review flags it. Review maintains a list of clause types that the playbook marks as “must survive”. For each, it checks whether the clause appears in the survival list by number or by heading, or whether the clause itself contains survival language. A miss is flagged at High for confidentiality and liability caps by default, and at Medium for the rest. The flag names the orphaned clause and proposes an insertion into the survival list.

Check. Read the survival list and, for each clause it names, confirm the number is right. Then read the list of clause headings and ask which ones are missing.

2. The stale cross-reference

The survival clause says “clauses 9, 12, 14 and 17 shall survive”. Clause 12 was the limitation of liability in the template. In this draft, after the counterparty inserted a new clause 8, limitation of liability is clause 13, and clause 12 is now the clause about notices.

How Review flags it. Review resolves each number in the survival list to the clause it currently points to and compares the heading against the playbook’s must-survive list. If a referenced clause is something that has no obvious reason to survive (notices, counterparts, entire agreement) and a must-survive clause is unreferenced, it flags both facts together at High and proposes the corrected numbers. Where the document uses automatic cross-references in Word, Review also checks whether the field has been updated.

Check. Click each number. In a long negotiation, do this on every turn, not just the first.

3. The uncapped survival of an indemnity

The indemnity survives. The limitation of liability does not, or survives only for a shorter period. The result is an indemnity that may be uncapped after termination even though it was capped during the term.

This is a drafting error more often than a negotiating tactic, but the effect is the same either way.

How Review flags it. Review checks whether every clause that creates a payment obligation (indemnities, warranties, payment terms) has a survival period no longer than that of the limitation of liability clause. A mismatch is flagged at High with a plain explanation: “Indemnity survives indefinitely; liability cap survives 24 months.”

Check. Put the survival periods for the indemnity and the cap side by side. They should match, or the cap should be longer.

4. The silent period

“The following clauses shall survive termination.” For how long? Indefinitely is one reading. Until the limitation period for any claim expires is another. Six years, in some jurisdictions, for a contract under hand; twelve for a deed in England. The parties may have meant different things and the clause does not say.

How Review flags it. Review flags a survival clause with no stated period at Medium by default, higher if the playbook marks the position as one the firm cares about. The proposed redline inserts the playbook’s preferred period. Where the firm’s playbook has no position, the flag is a Note with no proposed text.

Check. If the clause gives no period, decide whether you are content with the default under the governing law, and whether you know what that default is.

5. The one-way survival

The survival clause is drafted so that the counterparty’s obligations survive and yours do not, or vice versa. The common form: “Supplier’s obligations under clauses 9 and 12 shall survive.” The customer’s confidentiality obligation under clause 9, apparently, does not.

Sometimes this is intended. More often it is a template written for one side and reused for the other.

How Review flags it. Review reads the survival clause for party-specific language and checks it against which party the firm is acting for, which it takes from the matter record. One-way survival that disadvantages the firm’s client is flagged at High. One-way survival that advantages the client is a Note, because the reviewer may wish to leave it alone and it is not Review’s job to negotiate for the other side.

Check. Read the clause with the party names swapped. If it reads differently, it is one-way.

A short checklist

• Every must-survive clause is in the list, by current number.
• Every number in the list points at something that should survive.
• Indemnity and warranty survival is no longer than cap survival.
• A period is stated, or the default under the governing law is known and acceptable.
• Survival applies to both parties, unless the asymmetry is deliberate.

Review will catch most of these on every pass. The checklist exists for the pass where you are reading without it.