Key Takeaways

  • In legal language, "notwithstanding" is used to signal that a clause overrides conflicting provisions.
  • Its usage creates a legal exception or hierarchy of clauses in contracts.
  • Although powerful, it can lead to ambiguity if not clearly drafted.
  • Alternatives and contextual clarity can help improve readability and reduce misinterpretation.
  • The phrase “subject to” often works in tandem or opposition to “notwithstanding.”
  • Proper placement, drafting discipline, and legal review are essential when using this term.
  • Readers can connect with a qualified attorney through UpCounsel for contract assistance.

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 Legal Use: Introduction

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.

What Does "Notwithstanding" Mean in Legal Contexts?

In legal documents, the word “notwithstanding” is a powerful drafting tool used to introduce exceptions or establish priority among clauses. When a clause begins with “notwithstanding,” it overrides any conflicting terms elsewhere in the agreement.

This means that even if other provisions state something contrary, the "notwithstanding" clause will take precedence. It's a signal that the provision will apply despite anything else in the document that may suggest otherwise.

Example:

“Notwithstanding anything to the contrary in this Agreement, Party A may terminate with 30 days’ notice.”This signals that Party A's termination right applies even if other parts of the agreement mention different termination periods.

This term is synonymous with “despite,” “in spite of,” or “even if,” but has a formal, legal weight in contracts that demands careful attention from both drafters and readers.

“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.

Common Pitfalls When Using "Notwithstanding"

Although “notwithstanding” can clarify priorities between clauses, improper use often introduces confusion. Here are frequent pitfalls:

  • Ambiguity of reference: It's not always clear what clause is being overridden, especially in complex agreements.
  • Overriding unintentionally: A “notwithstanding” clause may trump provisions the drafter did not intend to override.
  • Placement confusion: Positioning the phrase mid-sentence or in non-standard sections can reduce clarity.
  • Overuse: Using “notwithstanding” too frequently may undermine contract readability and signal poor structure.
  • Contradictions: When used without cross-referencing, it can result in conflicting obligations or legal uncertainty.

To avoid these issues, contracts should be carefully reviewed to assess whether the “notwithstanding” clause conflicts with other terms and if that conflict is intentional.

“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.

When and Why to Use "Notwithstanding"

The phrase is most beneficial when clarity of precedence is necessary. Common scenarios include:

  • Overriding general clauses: It’s ideal when a specific term must supersede broad, general rules.
  • Carve-outs in complex deals: In M&A or commercial contracts, “notwithstanding” helps isolate key exceptions.
  • Avoiding internal inconsistency: Helps resolve internal contradictions when multiple drafters work on the same agreement.
  • Avoiding renegotiation: By ensuring key clauses prevail, parties may sidestep prolonged back-and-forth during negotiation.

Best Practices:

  • Use sparingly and intentionally.
  • Always clarify which provision is being superseded.
  • Preferably pair with references: e.g., “Notwithstanding Section 10.2…”

"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.

Legal Interpretation and Judicial Context

Courts generally interpret “notwithstanding” clauses as establishing supremacy. However, if the overriding intent is not explicit, courts may favor a reading that preserves both clauses rather than allowing one to nullify the other.

Legal principles at play include:

  • Harmonization: Courts often strive to interpret contracts in a way that harmonizes provisions, avoiding conflict where possible.
  • Clear precedence: When a “notwithstanding” clause clearly contradicts another, the court typically gives effect to the “notwithstanding” clause, assuming deliberate override.
  • Contra proferentem rule: Ambiguities are interpreted against the drafter, especially in consumer or adhesion contracts.

Due to these nuances, clarity in drafting is paramount to avoid misinterpretation and costly litigation.

Drafting Considerations for Clarity and Precision

Drafters should aim for legal precision by being methodical with clause construction when using "notwithstanding." Best practices include:

  1. Specify the reference point: Instead of saying “notwithstanding anything,” consider “notwithstanding Section 5.4” for clarity.
  2. Avoid circular references: Ensure that provisions do not refer back to each other in conflicting ways.
  3. Keep it at the beginning of a clause: This placement improves readability and signals overriding intent upfront.
  4. Limit scope of override: Use this language judiciously to prevent one clause from unexpectedly overriding multiple provisions.

Alternatives can also improve clarity. Rather than defaulting to "notwithstanding," consider:

  • “Except as provided in Section X…”
  • “To the extent not inconsistent with…”

These alternatives can be less jarring and more comprehensible to non-legal readers while still maintaining enforceability.

Frequently Asked Questions

  1. What does “notwithstanding” mean in legal contracts?
    It means “despite” or “in spite of,” and is used to indicate that a clause will override conflicting clauses in the same document.
  2. Is "notwithstanding" the same as "subject to"?
    No. “Notwithstanding” asserts dominance over another clause, while “subject to” indicates that the clause is subordinate to another.
  3. Should I always use “notwithstanding” to prioritize clauses?
    Not necessarily. It should be used deliberately and only when clarity and legal precedence are required.
  4. What are the risks of using “notwithstanding” in contracts?
    Improper use can create ambiguity, override unintended provisions, and potentially lead to legal disputes.
  5. Can I get legal help with contract drafting?
    Yes. You can post your legal need on UpCounsel to connect with experienced contract attorneys.

If you need help with understanding notwithstanding legal use, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.