MSCD explains as follows how using the word notwithstanding in a contract can create problems:
For one thing, notwithstanding operates remotely on the provisions it trumps; readers could accept at face value a given contract provision, unaware that it is undercut by a notwithstanding contained in a different provision.
Furthermore, although a notwithstanding clause that refers to a particular section at least warns readers what is being undercut, one that encompasses the entire agreement leaves to the reader the often awkward task of determining which provisions are affected.
The bottom line is that it’s much more reader-friendly to use subject to in the provision being trumped rather than notwithstanding in the provision doing the trumping.
But let’s now consider something I’ve been asked regarding notwithstanding. The suggestion is that notwithstanding should come at the end of the phrase in question, not at the front. Here’s how someone expressed it to me recently in an email:
I see notwithstanding used constantly in agreements with no regard for the position of its complement (or at least the clear identification of its complement), which can give rise to these contrary interpretations. … The phrase, “notwithstanding anything to the contrary herein” could be read literally to mean the complement should fall to anything else in the document with which it conflicts. That is not, however, the meaning that is sought. It seems to me that the proper formulation would be to start the paragraph with “Anything to the contrary herein notwithstanding, …”, which then makes clear that what follows will trump anything else in the agreement.
Garner’s Dictionary of Legal Usage, at 615, expresses my view on this:
The question that literalist drafters ask is, What doesn’t withstand what else? Are the limitations of § 3.5 “not withstanding” (i.e., subordinated to) the present section or is the present section “not withstanding” (subordinated to) § 3.5? Because the former is the correct reading, some believe that notwithstanding should be sent to the end of the phrase in which it appears: The limitations contained in § 3.5 notwithstanding, as opposed to Notwithstanding the limitations contained in § 3.5.
But that literalist argument is very much in vain, as the OED attests with a 14th-century example of notwithstanding as a prepositional sentence-starter. This usage has been constant from the 1300s to the present day. In fact, the construction with notwithstanding after the noun first appeared more than a century later, and has never been as frequent.
Here, as elsewhere, the literalist tendency can lead drafters astray.
But this is a sideshow, as you’re better off not using notwithstanding at all.
Want more on notwithstanding? See this post and this post, both from 2013.
4 thoughts on “A “Notwithstanding” Sideshow”
On the latter point, Garner says that both uses happen — “notwithstanding” at the beginning of the phrase since the 1300’s and predominantly; and “notwithstanding” at the end of the phrase since the 1400’s and a less frequent use. Given that observation, it seems like it would be difficult to determine whether a drafter was consistently in the majority, consistently in the minority, or inconsistent. That makes “notwithstanding” a landmine of ambiguity — another reason to avoid it.
If I have to change it in place (as opposed to eliminating it and making the other provision subject to), I would use “despite,” because “despite” is not subject to the same ambiguity.
But Garner’s point, and mine, is that there’s no ambiguity: the meaning is the same, wherever “notwithstanding” is located.
I suspect we’re saying the same thing. I agree with you if, but only if, the drafter placed the word “notwithstanding” in only one position. But, if the drafter placed it at the beginning in some phrases and at the end in others, are you now as confident? I don’t really want to have to guess about when the placement is meaningful. Suppose that there was extrinsic evidence that the drafter thought that the placement of the word “notwithstanding” was meaningful, and that the recipient of the draft was aware of that. Do you think that there is zero risk that a court would reach that extrinsic evidence because the word is not ambiguous? Based on your book and your blog, I don’t think you recommend taking that risk when it is easily avoided.
Everyone agrees that “notwithstanding” is best avoided. But if a rogue drafter puts “notwithstanding” sometimes before its complement and sometimes after, the risk of ambiguity is about the same as if the drafter sometimes says “whether or not the debt is paid” and sometimes “whether the debt is paid or not.”
The danger that a court will find that different phrasings carry different meanings exists only when the two phrasings are reasonably capable of different interpretations. Here, they’re not, because the two long-bearded placements of “notwithstanding” have always been used synonymously without regard to the new-fangled claims of literalists.
By my less than rigorous reckoning, this is the closest you’ve ever come to being wrong on this blog.