Home > Notwithstanding
by Chris Lemens
The word "notwithstanding" is one of my pet peeves. People, but especially lawyers, misuse it. Worse still, otherwise reputable dictionaries give incorrect examples or fail to distinguish its proper use from its improper use; those that do are often equivocal about it.
The typical use of the word "notwithstanding" is in this kind of sentence:
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Notwithstanding the provisions of Section 2.2, Customer will pay Vendor in full within 30 days. |
Now, suppose that Section 2.2 is a billing dispute provision. From the text of the sentence, is the intent that the customer does or does not pay during a dispute? The grammatically correct answer is that the obligation of the customer to pay does not withstand the effect of Section 2.2. However, I have seen lawyers use it to mean the opposite. For example, I just finished working on an agreement -- prepared by an intelligent and experienced partner at a highly regarded New York law firm that used the following construction:
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Notwithstanding any other provision of this Agreement, nothing herein will preclude the Company from taking the actions listed in this Section. |
Here, from context, it is clear that -- unlike the payment sentence above -- the fact that Company is not precluded from doing certain things does withstand any other provision of the Agreement. Rather, the other provisions of the Agreement do not withstand the fact that Company is not precluded from doing certain things. The correct construction would have been:
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Any other provision of this Agreement notwithstanding, nothing herein will preclude the Company from from taking the actions listed in this Section. |
So, what happens when a single document uses both the correct and incorrect usages of the word notwithstanding, then uses the word in a context where the intent is not clear from the document? I think it means that your contract is ambiguous, which opens it up to interpretation by all of the various rules that courts use to resolve ambiguity, such as external evidence about the intentions of the parties, extenrnal evidence about the course of negotiations, and interpretation against the drafter. You really don't want that.
Personally, I prefer to avoid the use of the word "notwithstanding" altogether. Except when you want to sound pompous, you can always replace the word with "despite" and then re-write the sentence to correct the usage. For example, in the second sample above, we should have written:
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Despite any other provision of this Agreement, nothing herein will preclude the Company from from taking the actions listed in this Section. |
And in the first sample above, we should have written either of the following, depending on what we meant:
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Except as described in Section 2.2, Customer will pay Vendor in full within 30 days. |
or
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Despite the provisions of Section 2.2, Customer will pay vendor in full within 30 days. |
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