I have seen so many contracts with unenforceable clauses, made up gibberish, illegal demands. Then a fancy pants "if any part of this contract is unenforceable, the rest shall remain in effect" or some such.

Two things here.

First is? While I have seen courts toss the whole contract regardless, mostly because key invalidated clauses unbalanced the contract, I'd like to see this legislatively made illegal. Why?

Because second thing is, I've seen companies write contracts knowing some clauses are unenforcable, but putting them there to scare, to intimidate.

Literally, it is an attempt to play "their game". Especially with ridiculous terms of service, eg, not a real contract in most parts of the world.

So don't play their game. Don't presume the contract is valid, or legal, especially when the balance of power is unequal.

I don’t presume this at all, but saying ‘this clause is unenforceable because x, y and z’ is much more work than saying, ‘look, your own contract says you failed to uphold your end of the deal’.

Mostly because you likely have to search through tons of laws to find x, y and z. As convoluted as contract language is, a whole legal handbook is much more so.

Yes, and sadly decluttering and simplifying law isn't trivial, or perhaps even doable.

"It is better that ten guilty persons escape than that one innocent suffer". We should _definitely_ err on the side of leniency on this. If my employment contract isn't watertight because of a law change, or a discrepency in an unrelated clause, should my employer be able to renege on my pay because the contract is invalid?

An example, intent. If there is a 20 email long chain, discussing a clause in a contract, that counts too. What was the intent of both parties?

And don't let clauses such as "this contract is in whole the agreement between all parties" deter, because courts don't care when establishing intent.

So, what was the intent of the contract? Was an offer proffered, then follow by contract? What was the intent of the offer?

Courts look at invalidated clauses, and then attempt to rebalance the contract.

These clauses are just scare tactics, and have been happening since Rome, where most of our laws originate...

I have seen so many lawyers argue "might as well put it in, can't hurt!".

Sometimes the best contract is a one liner scribbled on a napkin. All this excess is counter to the public good.

What if the contract includes a statement: "this agreement consititute the entire agreement between the parties and supersedes, merges, and replaces all prior oral or written agreements, negotiations, offers, representations, etc. with respect to the subject matter. No course of dealing between the parties, no usage of trade, or outside evidence of any nature shall be used to modify, interpret, or supplement blah blahb lahblhbjajk"

Yeah that 20 email chain? The contract specifically says it can't be included in the agreement. Bringing that up was a fun conversation when negotiating the contract...

2) Context counts.

Contracts are interpreted documents. What both parties meant in clause 1.3.1, must be interpreted, to be enforced by a court.

A 20 long email chain provides context. What did the parties really mean, when they signed?

So are you suggesting that when considering the validity of a contract, externalities should be considered (e.g. the 20 email chain), but the actual document that was signed should not be considered?

What I effectively did say, is that contracts exist in context. That context counts.

See my other reply.