Definition
A separate covenant is a promise made by one party in an agreement that binds that party alone, independently of any other party who may have joined the same instrument. Where multiple parties sign a contract and each agrees to perform (or refrain from) an act individually rather than together, their covenants are separate. Each covenantor is liable only for their own portion or promise, not for the promises of the others.
Separate covenant is the counterpart to a joint covenant (and, in its fuller form, a joint and several covenant). The distinction determines who can be sued, for how much, and whether one covenantor's default or release affects the others.
Common Confusion
SEPARATE COVENANT vs. JOINT COVENANT vs. JOINT AND SEVERAL COVENANT: These three forms are frequently conflated. Under a joint covenant, all covenantors are bound together as a single unit — historically, a creditor had to sue all of them together, and the release of one released all. Under a separate (also called several) covenant, each covenantor is bound independently for their own share only; suing or releasing one has no effect on the others. A joint and several covenant combines both: each party is individually liable for the whole, and all are liable together. Historical sources, including early editions of Black's, use "several" and "separate" interchangeably in this context, which can create confusion for researchers accustomed to modern drafting conventions where "several" often appears only in the compound phrase "joint and several."
Why It Matters in Research
The practical stakes of the separate/joint distinction were enormous in historical common law pleading. Under strict common law rules, a joint covenant required all surviving covenantors to be named as parties to any suit — missing one could be fatal to the action. A separate covenant allowed the creditor to proceed against any individual covenantor for their portion without joining the rest. Researchers working in pre-twentieth-century case law must be alert to this: courts frequently turned on whether a covenant was construed as joint or separate, and the analysis was highly fact-specific, turning on the precise language of the instrument and the number of obligors.
In modern research, the term appears most frequently in real property contexts (particularly conveyances with multiple grantors), partnership agreements, and older bond instruments. When reading historical deeds or indentures, the presence of the phrase "severally covenant" or "each for himself" signals a separate covenant structure and carries specific legal consequences for privity, breach, and remedies.
Be cautious with secondary sources that conflate "separate" with "several" in discussions of liability rules — both terms are historically accurate, but modern usage increasingly reserves "several" for the compound "joint and several," which can make older dictionary definitions read as if they are describing something narrower than intended.
For researchers working with separation agreements in family law, note that "separate covenant" in that context most often refers simply to an independently enforceable promise within a marital settlement agreement — a distinct usage from the joint/separate covenant doctrine in contract and property law. Context controls.
Historical Dictionary Support
Black's Law Dictionary defines a separate covenant as "[a] several covenant; one which binds the several covenantors each for himself, but not jointly." This definition is economical to the point of terseness, but it captures the essential structure accurately. The equation of "separate" with "several" reflects the historical usage: in classical common law nomenclature, these terms were synonymous when describing a covenant that imposed individual rather than collective liability.
What Black's does not address — and what researchers should supply from treatise sources — is the interpretive presumption that courts applied when an instrument was ambiguous. English common law developed a default rule that a covenant made by multiple parties was presumed joint rather than separate unless the contrary clearly appeared. American courts followed this presumption with variation; some states shifted the default by statute, particularly for obligations in writing. This interpretive backdrop is essential context that the bare dictionary definition omits.
Jurisdictional Note
Several states modified the common law presumption in favor of joint covenants through nineteenth- and twentieth-century legislation, treating obligations of multiple parties as joint and several (or, in some codes, purely several) absent contrary agreement. Researchers should not assume the common law default applies in any given jurisdiction without checking the applicable statute governing construction of obligations.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia, Discharge — Release and Covenant Not to Sue (contracts_70): Relevant for understanding how the separate vs. joint structure affects whether a release of one covenantor extinguishes the obligations of the others.