The meaning of ‘notwithstanding’ in the legal context
One of the more common words you will see in any insertion in a contractual document is "notwithstanding." "Notwithstanding" can appear at the beginning of a sentence or at the end of a clause. In either position, it has the same value.
As an aside, notwithstanding the obvious fact that "notwithstanding" is a placeholder that denotes, or rather indicates, an exception to a rule or condition, its use is so broadly accepted that most scholars have agreed that it is not necessary to explain it in plain terms in legal documents or in statutes and legislation. In fact, among attorneys, "notwithstanding" is commonly referred to as a "legalese." English-speaking people have used diverse phrases to try to explain the use of "notwithstanding", but all these have failed because of how broadly "notwithstanding" is applied both in practice and in legal documents . The origin of "notwithstanding" is in the Latin word "non obstante" which also means "notwithstanding." Under United States law, "notwithstanding" is a shortened form of the phrase "notwithstanding the provisions of any other law." Essentially, "notwithstanding" operates as a shortcut by which practitioners need not re-synthesize the tas of considering every other law, when some other law is appropriate to achieve the intent of an agreement in a document. It is particularly important to note this when it is used in statutes, regulations, or other legal contexts where there may be ambiguity or where one law appears to conflict with another. "Notwithstanding" is also used to limit the applicability of a statute or contractual provision to those specific provisions which they state.
The use of ‘notwithstanding’ in contractual settings
Notwithstanding, when used in contracts, is utilized to create clause(s) that override (supplanate) any other clause of the contract or act as a subject matter limitation to the contract to which it is applied. For example, if the parties have made an agreement that covers multiple subjects, not all of which are addressed by a particular clause, the term notwithstanding can be used effectively to limit the application of a particular clause to a specific subject. For example, if parties have a contract that lists numerous objectives, but the parties want to specifically limit a certain clause to apply only to certain of those objectives, the parties may consider using the word notwithstanding to exclude from the application of the clause objectives outside the scope of the objective sought for that particular clause.
Other provisions may exist in a contract, the application of which the parties wish to subject to the limitations of the notwithstanding clause, for example a term or condition of the contract that may conflict with the objective the clause was intended to accomplish. By use of a notwithstanding clause, the parties can effectively limit the application of the clause of contract that they would like to have over-riding effect, without the need to re-draft a separate amended contract.
The use of notwithstanding clauses is important to contract interpretation because application of the notwithstanding clause will typically take precedence over other clauses in a contract and will contractually override other conflicting clauses of the contract unless the contract specifically provides otherwise.
Furthermore, the courts have held that notwithstanding clauses contain the meaning that the clause is to have overriding effect (see e.g., Coome-Theunissen, F.L., The Professional Responsibilty of the Real Estate Lawyer: Modern Issues and Common Sense Responses 124-126).
‘Notwithstanding’ in statutory context
The use of the term "notwithstanding" in statutory law is integral to the interpretation of legislative intent. By including this word, drafters are able to assert that one provision should trump another, regardless of the latter’s position within the statute.
Several instances have solidified this interpretation of the term within the legal system. Courts have ruled that a "notwithstanding" clause removes the matter from the other provisions of the statute and severs it from the body of the statute as a whole.
In Naylor v. Goethe, 310 Ill. 308 (1923), for instance, the Court ruled that although the title of the act specified only "the collection of a tax levied upon motor vehicles," and the act contained specific language on how to compute the taxes, the real intent behind the lawmakers was to create an unambiguous method for computing the tax.
The state Supreme Court determined that the interpretive clause at the end of the statute was the only mention of a different method for calculating the tax, so there was an ambiguity in the plain language of the words. Nonetheless, once the court determined the intention of the lawmakers, the "provisions of the act relating to the method of computing the tax must yield to the last clause prescription."
Other Illinois cases dealing with "notwithstanding" clause include the following: Payton v. Uber Technologies, Inc., 161 F. Supp. 3d 473 (N.D. Ill. 2016) (Plaintiff contends that the arbitration clause in the general terms and conditions and not the arbitration clause in the background check disclosure and consent form applied as the latter constituted a "notwithstanding clause.").
People ex rel. McMillan v. Snodgrass, 315 Ill. App. 314 (Ill. App. Ct. 1942) (pursuant to the "notwithstanding" clause, the judge made other provisions of the Act "unmandatory").
Common misconceptions regarding ‘notwithstanding’
There are several misconceptions about "notwithstanding" which, when left unchallenged, can result in confusion. First, because "notwithstanding" is a Latin word, many assume that it must be contained in a Latin phrase to be valid; that is simply not true. Like many other legal terms of art, it’s a word that has its own distinct legal meaning. Even among those who speak English as their native language, there is a great deal of confusion over the use of "notwithstanding" and its interpretation. A common misconception is that "notwithstanding" has an overriding importance — it does not. While "notwithstanding" can and often does govern legal documents, its role is not as dominant or controlling as many assume. For example, in an agreement — whether binding, non-binding, enforceable, but contingent — the phrase "notwithstanding any other legal authority" may be justified, but its inclusion should never be treated as the foundation upon which the agreement — or any piece thereof — rests. Instead, it’s a supplemental addendum, so to speak, to legal text above it. And yet, lawyers and laypersons alike often take this phrase for granted. In fact, precedence is always — by law — derived from the text above "notwithstanding" in an agreement, contract, binding or non-binding. In other words, if the authority above "notwithstanding" contradicts authority below it , the authority above it will always take legal precedence.
Another commonly held misconception is that "notwithstanding" exists to clarify legal text, such as a contract, statement, or rule. This isn’t a misconception so much as a misinterpretation. "Notwithstanding" is not intended to clarify; instead, it’s intended to obfuscate, using a strong, standardized legal terminology to ensure clear intent. In addition, "notwithstanding" is most frequently used in provisions that are themselves not clear or succinct. Its presence in a contract, statement, or rule doesn’t call for clarification; rather it establishes that lack of clarity as a legal fact. Of course, this brings us to the final, and most commonly held, misconception. A common practice shared by lawyers and laypersons alike is to treat "notwithstanding" as redundant or pointless. This is a dangerous mistake. When practitioners fail to appreciate the significance of "notwithstanding" in a legal context by treating it as superfluous, they are jeopardizing the integrity of the document in which that term appears. In other words, these provisions exist for good reason. Further, when lawyers or laypersons treat "notwithstanding" as a "don’t bother with," useless term in legal copies, they can and often do set themselves up for failure. Indeed, it only takes the presence of the word "notwithstanding" to dictate the outcome of entire cases.
Practical implications of ‘notwithstanding’
Practical Implications of Using "Notwithstanding" in Legal Documents
Most importantly, "notwithstanding clauses" (in their latest iteration) have curtailed the courts’ traditional equitable ability to construe conflicting clauses in a legal document together. In the 1700s, judges sometimes arose from the bench when reading "notwithstanding" because of its equivocation and, perhaps, the inherent danger of uncertainty in legal writing at that time. See Jacob Gersen and Eric A. Posner, The Invention of Legal Text: Notes from the Field (2013). "These days," Professor Gersen and Professor Posner point out, "such an equivocal term is unlikely to startle a judicial reader." Id. at 6. Still, the diminishment of the courts’ power to consider the meaning of "notwithstanding" clauses should trouble legal drafters. As already discussed, "In the Notwithstanding Clause, the Court Has Disallowed Judicial Construing." Gersen and Posner, The Invention of Legal Text, at 4. "[B]y the turn of the twentieth century, courts had begun cutting back on their power to construe." Id. Take for example the Court’s ruling in Norwich v. Theda, 226 P.2d 483, 486-487 (Cal. 1951): Thus, while the term [notwithstanding] is a negative word, word having a positive meaning is usually ascribed to it in a legal context, particularly in interpreting legal documents . . . . In other words, the fact that a section is prefaced by the word ‘notwithstanding’ will not absolutely prevent its operation in cases where it would operate, had the word not been used . . . . [T]he use of the word ‘notwithstanding’ before the general rules of construction applicable thereafter will not preclude the application of those rules unless the context or other language in the instrument before us clearly indicates to the contrary . . . . Id. At the end of the day, you can and should expect surprises when drafting contracts with a "notwithstanding" clause, simply because the language implies a choice, but does not necessarily correspond to one. To be sure, "notwithstanding" is still a useful tool in a legal drafter’s kit. With a "notwithstanding" clause, you can provide for exceptions (i.e. "notwithstanding Section X, overrides") and thereby negotiate power into a contract or some other type of legal document. You may choose to include ideas in a legal document that the parties may be afraid to express outright. In such a case where risk is reduced and ideas are expressed, you may choose to use a "notwithstanding" clause as a stealth weapon. I recommend that you look beyond the risks of ambiguity in the courts and consider whether you are more comfortable with a "notwithstanding" clause because it gives you, the drafter, leverage and/or lies at low risk for you, the drafter.
Concluding remarks: understanding ‘notwithstanding’
The term "notwithstanding" is a legal term of art that is defined as something that overrules or disturbs a particular clause or condition. As noted throughout the article, the term has a variety of different meanings and uses, some of which are straightforward while others can become more nuanced depending on the context it is used in. Throughout this article, we have highlighted the use of the term "notwithstanding" to list exceptions to legal obligations, as an exception to the rule of construction contra proferentem , in legal opinions, and statutory exclusions. In closing, it is important to take note of how various courts have applied "notwithstanding" and how the term impacts legal documents that are in the midst of litigation. Given the variety of uses for the word, it is essential that you do not overlook this commonly used term in legal documentation. As this article has discussed, "notwithstanding" is a very powerful term and can drastically alter the effects of a legal opinion relied on by the Court.