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What does notwithstanding mean in legal terms?
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Notwithstanding Meaning In Law
There is no doubt that you may have come across the word “notwithstanding” in a contract or legal document.
What does notwithstanding mean in the first place?
In law, the word notwithstanding means “despite” or “regardless”.
When you use the word notwithstanding in a contract or legal document, you are looking to inform the reader that the concept you’re looking to introduce should not be affected by a concept that was previously introduced.
For instance, notwithstanding Concept A, Concept B is…
This means, regardless of the legal obligations outlined in Concept A, you must observe Concept B as per the terms introduced after the word notwithstanding.
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Notwithstanding Definition
How do you define notwithstanding in common English?
According to the Merriam-Webster dictionary, the word notwithstanding is defined as:
“Despite”, “nevertheless”, or “however”
The use of the word notwithstanding in law follows essentially the same meaning as plain English.
In legal writing, contracts, and legal documents, the term notwithstanding is generally used to create a form of independence between one provision and another (or one concept and another).
For example, Clause A creates a certain rule.
Then, if Clause B starts with “Notwithstanding Clause A”, it means that Clause B must be upheld regardless of the rule created in Clause A.
Notwithstanding In Contracts
Here is how the word “notwithstanding” is used in a contract:
Notwithstanding any provision of the Agreement, “Award” means a grant of Restricted Stock Units subject to the Plan rules.
As you can see in this example, the word notwithstanding is used to indicate that “regardless” of any other provisions of the agreement, the word “Award” means the grant of Restricted Stock Units.
The use of the term notwithstanding here is intended to have the definition of the term “Award” supersede all other possible definitions or interpretations in the agreement.
Notwithstanding In Legislation
The word notwithstanding is also used quite frequently in statutes by legislative drafters.
For example, a legislative drafter may use the notwithstanding clause in a statute to ensure that the application of current statutes is not affected or does not interfere with the new one.
In some cases, the notwithstanding clause will directly point to the other statute the legislative drafter is referring to.
However, in some cases, the notwithstanding clause keeps the formulation broad like “notwithstanding any other provision of the law” making the legislator’s intention more difficult to discern.
Notwithstanding Pros
The main benefit in using the notwithstanding term in a contract or legal writing is that you bring the reader’s attention to the fact that the concept you’re looking to introduce should not be affected by another concept.
In essence, you are creating a subordination rule.
Notwithstanding Concept A, Concept B is…
You are ensuring that Concept B is not affected, altered, or interpreted differently by Concept A.
Another benefit of using a general term like “notwithstanding” is that you can subordinate specific or many provisions of a contract all at once.
Of course, you should always be mindful of interpretation issues that you may be creating when you use the word notwithstanding broadly.
Notwithstanding Cons
The main drawback when using the term notwithstanding in legal writing or contract is that it creates confusion.
When you say “notwithstanding any other provision in the agreement”, to which provision are you referring to?
In the event of a dispute, lawyers will immediately jump on the interpretation challenges that your contract will have.
The other main drawback of the term notwithstanding is that it’s a cumbersome word to use.
If you’re looking to say nonetheless, although, despite of, or something along those lines, you may want to use the more fitting term or phrase.
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Notwithstanding Examples
Let’s look at a few examples of how the word notwithstanding is actually used in contracts.
Example 1
Notwithstanding Article 2 of the Partnership Agreement, if the Fund Manager intends to further extend the Term of the Partnership further upon the extension, it shall obtain the prior written consent of the Investor.
Example 2
The Award shall also be eligible for accelerated vesting as provided in Section 10 of the Plan notwithstanding any event of a Change in Control.
Example 3
The stockholders may not adopt, amend, alter or repeal the Bylaws of the Corporation, or adopt any provision inconsistent therewith, unless such action is approved. Notwithstanding the fact that a lesser percentage may be specified by law, the affirmative vote of the holders of at least two-thirds in voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon shall be required to amend or repeal, or to adopt any provision inconsistent with, this Article.
Takeaways
So there you have it folks!
Notwithstanding is a term used in contracts, legal documents, and formal writing.
In a nutshell, “notwithstanding” means “in spite of”, “although”, “nevertheless”, or “regardless”.
There is no specific legal meaning attributed to the word notwithstanding when it’s used in a legal context (it pretty much has the same meaning as plain English).
Typically, the term notwithstanding is used to introduce a provision or concept that the reader wants to ensure is not affected by other provisions or concepts in the legal document.
Now that you know what notwithstanding means in law, good luck with your legal writing!
