Notwithstanding: Legal Definition Explained
In legal parlance, "notwithstanding" is often employed in a contractual provision to mean that the particular provision of the contract shall be controlling. As applied, the overriding nature of "notwithstanding" may apply notwithstanding any other provision or provisions of the contract. See Mt. Holyoke Mills Corp. v. Hartford Fire Ins. Co., 98 Ga.App. 244, 105 S.E.2d 824 (1958). Accordingly, while "notwithstanding" does not, as its plain meaning might suggest, mean "despite," it essentially works in reverse to allow a given provision of a contract to override other provisions of the contract that it specifically references. See In re Healthy Pets, Inc., 580 B.R. 703, 707 (Bankr. N.D. Ga. 2017). "Notwithstanding" is a transitional word that is commonly used at the beginning of a sentence, clause or paragraph to signal to the reader that what follows will be controlling despite any contrary provision in the document as a whole. "Notwithstanding" is synonymous with "regardless of" and "despite." See Black’s Law Dictionary (11th Ed. 2019). In the context of federal rules, "[t]he word notwithstanding … is used to indicate an exception to the general rule which would otherwise apply in a particular situation." Ctr. for Envtl. Innovation v. Fed. Energy Regulatory Comm’n, No. 16-1220 , 2017 WL 5509894, at *6 (D.C. Cir. Nov. 17, 2017) (quoting Black’s Law Dictionary 10th ed. 2016). The plain language meaning of "notwithstanding" is "[d]espite; notwithstanding." Black’s Law Dictionary 1218 (10th ed. 2014). "Notwithstanding" is "foreign to the most graceful English Construction, but is in very familiar use in Law, to express Exceptions from the general Power of given Rulers." Black’s Law Dictionary 1218 (10th ed. 2014), quoting Thomas Erskine, Institutes of the Law of Scotland, at xi (1853). The word "notwithstanding" is a term that a reasonable person would understand, and as such it is not ambiguous. See Mt. Holyoke Mills Corp., 98 Ga.App. at 244 (quoting Williston on Contracts. Kimes Edition [New York], Vol. 10, Sec. 1068 (1942 Supp.)). "Notwithstanding" is not a technical term, and "[it] has not assumed a special meaning in the law." Id. Where "notwithstanding" is used in a legal document without a limiting clause, the specific words that have been "notwithstanding" must be construed in light of common sense and justice, as there is no rule of construction that the term supersedes all other provisions in the document. See Local No. 557 Amalgamated, Inc., United Paper Workers Int’l, A.F.L.-C.I.O., C.L.C. v. Saco Locomotive Works, 310 F.2d 780, 785 (1st Cir. 1962).
The Etymology and Historical Development of ‘Notwithstanding’
The term "notwithstanding" has a long-standing history in the legal landscape, appearing as far back as Roman times in vestiges of ancient legal texts. Its Latin derivative "non obstantibus" means "not standing against," and like many legal terms it has a posted-up role in a lexicon that belies the straightforward nature of the words’ meaning in contemporary usage. It has its roots in the old French word "nonobstant," of about the 1150s to 1350, though more recent usage by several centuries even loosens its brutality. It was not until around the 16th century (1619) that the word "notwithstanding" made another big leap into the English language and into legal parlance. The Standardized English Dictionary (published: London, 1721) called "notwithstanding," "a word of reference to something before mentioned; after, although; in spite of; notwithstanding." The legal definition holds weightier than the everyday flavor. It is not difficult to figure out that "notwithstanding" can mean any number of things, like "despite," "without regard to," "not contradicted," "despite," and "in spite of," for example. A not-so-subtle caveat: In spite of all of the good and even honorable typology in the world, there is a license and an intriguing pedestal that goes along with the legal use of the excusably vexing word, notwithstanding. The Oxford English Dictionary (OED) derives the word as a "legal exception," which contradicts its "to the subject matter or timing of an action." Thus, it is disputably used by its enforcers in the legal realm.
Common Uses of ‘Notwithstanding’ – When and Why It’s Used
In the legal realm, a deep understanding of synonyms is essential, even when, as in the case of the word "notwithstanding," it has no perfect alternatives. In regular English, you may use the word "despite" as a substitute, but in legalese, "despite" can lead to ambiguous meanings. "Notwithstanding" is more powerful and clear in contract law.
One important application of notwithstanding is in landlord/tenant agreements. When a tenant signs a lease, the agreement usually includes a notwithstanding clause. This is basically a way for the property owner to get out of the deal if the tenant violates conditions. It protects the property owner because it allows them to modify, amend or even terminate the contract. Making sure you understand the role of "notwithstanding" in any lease you are about to enter into is very important.
Another common use of notwithstanding is in employment agreements, particularly in HR policies. Sometimes, companies use notwithstanding clauses to allow them to hire and fire at-will. Sometimes, however, if an employee has a contract with his/her employer, the provisions of that contract can suggest the employment will last a specific amount of time. In this case, the notwithstanding clause overrides any notions the employee or manager has that employment is continuing and allows both parties to exit the relationship without any period of notice.
Sometimes states also insert "notwithstanding" clauses into their constitutions. For example, Alaska recently amended their constitution to allow the picking of a new senator to fill an existing seat after the senator’s death. That notwithstanding clause supersedes any rules in the constitution.
Examples of ‘Notwithstanding’ Clause in Contracts
1. Employment Contract
"Notwithstanding anything to the contrary contained herein, the employee shall devote their full working time, attention and efforts to the business during the term of this Agreement."
Here, notwithstanding is used to indicate that any obligations the employee may have or that contract may impose on the employee are superseded by the fact that the employee must devote their full working hours to the business.
2. Separation Agreement
"Notwithstanding any prior agreements between the parties, the consultant shall not have any obligations to disclose information concerning the Company."
In this clause, notwithstanding makes it clear that despite any non-disclosure obligations that were contained within prior contracts the consultant and company had, the consultant need not disclose company information from now on.
3. Lease Agreement
"Notwithstanding anything contrary contained in this Lease, the Tenant shall not be liable for damages to or loss of tenants’ property occurring on the Premises."
This samples indicates that even though there may be other clauses in the contract which would place the risk of loss or damages on the tenant, here, the tenant is held harmless for such event.
4. Purchase Agreement
"Notwithstanding any failure of Buyer to make a final decision regarding the contemplated transaction herein, Buyer shall be liable to pay all fees or expenses incurred with respect to the contemplated transaction."
In this context, notwithstanding indicates that the buyer will be responsible for all the costs associated with the purchase, even if they in fact do not complete the purchase.
Common Misconceptions and Mistakes about ‘Notwithstanding’
The use of ‘notwithstanding’ may appear simple, but these are some common examples of misunderstandings and pitfalls:
One common problem is that this term refers only to the text or portion of the text that is immediately after ‘notwithstanding’. On its own, it has no effect on other parts of the document. Unfortunately, people are sometimes taught to change the meaning of ‘notwithstanding’ by adding another clause to it, such as ‘notwithstanding anything contained herein’ or, ‘notwithstanding the preceding’. As stated above, ‘notwithstanding’ should be used independently, without alterations to it; otherwise , its intended meaning may be lost.
A misunderstanding that may arise from not using ‘notwithstanding’ is that it may be used to delete something, such as an obligation. This is not true; a document continues to have that particular obligation despite the addition of ‘notwithstanding’.
The placement of ‘notwithstanding’ can also be a source of confusion. It is factually incorrect to assume that adding ‘notwithstanding’ at the beginning of the document will prevent the entire document from being voided. Rather, the term must be placed directly before or in close proximity to the things it is intended to void.
Notwithstanding vs. Other Similar Words: An Overview
To better understand the precise role of "notwithstanding" when used in legal contexts, it may be useful to first examine how it compares to other common legal terms or phrases utilized similarly. For example, "notwithstanding" is often used interchangeably with the phrase "without regard to." In common parlance, "without regard to" is understood to mean "despite" or "without consideration of." The two concepts— "notwithstanding" and "without regard to"—are somewhat synonymous. Both refer to the dismissal of something as a concern. However, "without regard to" does not go as far as "notwithstanding." "Without regard to" does not purport to "overrule" something, as "notwithstanding" does. Notably, there are arguments that "without regard to" is appropriately used to express "notwithstanding" where "without regard to" is not followed by a specific concept. For example, in the sentence "without regard to any such issues," the concept is not expressly stated and the term is used correctly. Nevertheless, where "without regard to" is appropriately used, it does not threaten the suppression of a very specific idea as "notwithstanding" does.
Some legal scholars make the argument that "notwithstanding" is often inappropriately utilized because it overstates its power and puts its authority "beyond all question." This argument holds weight. For example, where a party may withhold damages, that party has no obligation to pay damages "notwithstanding" the fact that a "wrong" occurred. Here, there is no "overruling" of the fact that a "wrong" occurred. Instead, the "wrong" simply goes "unremedied" or "unredressed." "Notwithstanding" does not have a diminishing effect on the "wrong;" instead, it merely means "regardless of." Here, "notwithstanding" could have easily been replaced with "without regard to."
"Notwithstanding" most commonly coexists with other legal phrases. For example, "notwithstanding all of the forgoing" is regularly utilized in contracts. This phrase— "notwithstanding all of the forgoing"—is a close cousin to "notwithstanding" but "notwithstanding all of the forgoing" lacks the same force. Thus, "all of the forgoing" can be used to "carve out" a particular exception, especially where the "notwithstanding" clause is—by itself—too aggressive, such that it has the tendency to "overrule" something more broadly than intended.
"Notwithstanding" is also regularly used with regard to equities. In the doctrines of equity—equitable stay, equitable lien, equitable subordination, etc.—"notwithstanding" is commonly seen as a mechanism. It is as if "notwithstanding" allows a jurist to execute an authority that trumped all circumstances. In other words, where a particular power is afforded unless "notwithstanding" is invoked, it will be given unless it is prohibited by "notwithstanding." Here, "notwithstanding" accepts a "non-causal" role that removes it from the initial situation.
Tips for Lawyers on Drafting ‘Notwithstanding’ Clauses
The use of "notwithstanding" is very common in legal documents. However, there can be significant variations in how it is used. The following are some expert tips to assist you in drafting "notwithstanding" clauses.
Clarify Intent
Parties drafting "notwithstanding" clauses often struggle to determine the intent of the use of "notwithstanding." To ensure that your use of "notwithstanding" is clear, you should clearly state your intent in a footnote or introduction to the clause. You should also make any exceptions to your "notwithstanding" clause clear. For example, if you intend for the "notwithstanding" clause to be subject to any type of exception, such as another provision in an agreement, you should make this clear in the language of the clause.
Pay Attention to the Order of the Clause
"Notwithstanding" clauses have varying order variations based on the preference of the drafter. Some clauses use the term "notwithstanding," followed by the name of the law office or department responsible for drafting the document. Other clauses use the term "notwithstanding," followed by a description of the specific types of documents being drafted. By paying careful attention to the specific wording of "notwithstanding," you can create a type of "notwithstanding" clause that is easier for the reader to follow.
Conclusion: Understanding How to Use ‘Notwithstanding’ Properly
As a legal practitioner, your use of "notwithstanding" can add clarity to your work and help you to communicate complex concepts concisely. While the word may seem complicated or intimidating at first glance, it is a key tool that even novice and seasoned writers alike should be confident in using.
Hopefully, now that you have a better understanding of the word "notwithstanding", you have gained some insight into how to use it properly in your legal writing . Through this extensive guide, we have explored the definition and origin of "notwithstanding"; the various uses of the word; the nuances of how it appears in different legal contexts; review common pitfalls when using "notwithstanding"; and explored some well-known cases that illustrate how "notwithstanding" is applied.
Of course, you are not limited to just reading this guide. For those looking for further resources, these titles are a great place to start:
"Notwithstanding" is more than just a transition word—it’s a powerful tool at your side that can help you convey your thoughts and ideas clearly and succinctly. With practice, you’ll master its proper use and begin to recognize when it can help your legal writing.
