Notwithstanding legal use means creating exceptions to the rules of a contract.

It also means despite, in spite of, even if, with regard to, however, in any event, nevertheless, still, and yet.

Notwithstanding in a contract is often misused. It can also be used to distract attention from a clause in a contract. It is used as a preposition to show that a provision is followed by another provision. It is not different than the definition used in everyday language.

“Notwithstanding”: The Cons

  • It can be confusing for readers. Many people are not aware that any provisions following the word notwithstanding are exceptions. It is often confused with “subject to” which elevates the text. The misunderstandings can cause breach of contract between parties.
  • It can subordinate rules that are not easily identified.
  • Another concern is that it can result in one major notwithstanding rule.
  • Notwithstanding is also coupled with foregoing. Foregoing means “that which came before.” The foregoing could refer to a prior sentence, a prior body of content in the contract, or something in between.

“Notwithstanding”: The Pros

Notwithstanding can be useful in some situations, including the following:

  • Your client needs a variety and a broad rule in a contract. Typically, clients know their contracts backward and forward. Ideally, it would not contain any ambiguity and is not difficult to read. Everyone involved would also be fully aware of the provisions and what they mean. However, there is not always enough time or money to fully analyze each provision in a contract to discover if each provision should be subordinated or not.
  • You know the provisions that need to be subordinated, and there are a lot of them. If you, for instance, want to implement a trumping rule in a contract and you know your contract well, so well that there are 20 provisions that may or may not need to be subordinated. Instead of stating the 20 provisions that need to be subordinated, a notwithstanding anything in the agreement would work.
  • You will more than likely need to subordinate more provisions as the negotiations move on. If you know there are more provisions coming up, and they will need to be subordinated, you may want to just make the trumping rule apply notwithstanding anything opposing the contract. You may also want to do this to avoid negotiation with a counterparty.

"Notwithstanding" and "Subject To"

“Subject to” and “notwithstanding” are two phrases that can be confusing when used in contracts. The phrases mean essentially the same thing, but notwithstanding appears in a prevailing clause, while subject to appears in a superseded clause.

Subject to has two different meanings:

  1. A phrase that is cross-referencing
  2. A phrase that introduces a conditional sentence

A cross-referencing phrase links a main rule to an exception. Subject to is used to look ahead to an exception. Notwithstanding looks back to a main rule.

The word despite is a synonym for notwithstanding, and the drafter of the contract can use either work he or she desires for the purpose of emphasis. If subject to were left out, the clause is still understandable. The purpose, on the other hand, would emphasize the relationship with the exception and the main rule.

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