A “Notwithstanding” Sideshow

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.

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Want more on notwithstanding? See this post and this post, both from 2013.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.