Hot on the heels of last month’s post about a case involving notwithstanding (here) comes another one, courtesy of Peter Mahler, in the form of this post on his New York Business Divorce blog.
By my reckoning, two notwithstanding cases within a month of each other constitutes a bonanza.
What makes the case Peter discusses particularly noteworthy is that it highlights yet another problem with “Notwithstanding any other provision of this agreement to the contrary,” namely that if you have that phrase in each of two conflicting provisions, you have a stalemate.
1 thought on “Notwithstandingpalooza!”
This is reminiscent of the “battle of the forms” issue, but outside the UCC, the court can’t break the stalemate by filling in statutory default terms to which the parties never explicitly agreed. After trial, the court will have to hold that (1) A trumps B; (2) B trumps A, or (3) nobody proved which trumps which, and go from there (rescission?). What a mess, but it would be the same if both “notwithstanding” provisions had been omitted.. The lesson is, don’t draft contradictory provisions with or without dueling “notwithstanding” provisions.