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What does notwithstanding the foregoing mean in contracts?
What’s essential to know?
In this article, I will break down the meaning of Notwithstanding The Foregoing so you know all there is to know about it!
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Notwithstanding The Foregoing Meaning
You’re reading a draft contract or a legal document and you come across the phrase “notwithstanding the foregoing”…
What does it mean?
In essence, notwithstanding the foregoing means “despite of”, “nevertheless”, or “in spite of”.
In other words, it’s a preposition that is used to indicate that the next concept limits or qualifies the concept that was just introduced.
“Notwithstanding” means “even though” or “nevertheless”.
“The foregoing” means “what was just mentioned” or “what just preceded”.
For instance, you can introduce one legal concept in the contract and use the “notwithstanding the foregoing” to introduce a second obligation that may be someone conflicting.
“Party A shall pay all invoices within thirty (30) days from receipt. Notwithstanding the foregoing, Party A shall have the right to dispute the invoice by providing notice within fifteen (15) days from the receipt of the invoice”
As you can see, the first concept is to require the other party to pay the invoice within thirty days.
Then, the use of the “notwithstanding of the foregoing” brings an exception to this rule where Party A can dispute an invoice by giving a fifteen-day notice.
Notwithstanding The Foregoing Use In Contracts
Let’s look at a few examples of how the phrase notwithstanding the foregoing is used in contracts.
Let’s look at the following provision:
The Company hereby covenants and agrees that, so long as the Employee shall be subject to any possible proceeding by reason of the fact that Employee was an agent of the Company or fiduciary of any Company benefit plan, the Company shall use reasonable efforts to obtain and maintain in full force and effect directors’ and officers’ liability insurance and fiduciary liability insurance coverage (collectively “D&O Insurance”).
Notwithstanding the foregoing, the Company shall have no obligation to obtain or maintain D&O Insurance if the Company determines in good faith that such insurance is not reasonably available, the premium costs for such insurance are disproportionate to the amount of coverage provided, or the coverage is reduced by exclusions so as to provide an insufficient benefit.
As you can see, in this example, the initial legal obligation introduced in the contract is for the employer to secure directors’ and officers’ liability insurance.
Then, the next paragraph starting with “notwithstanding the foregoing” brings a limitation or exception to this rule by stating that the employer may choose not to obtain or maintain the directors’ and officers’ liability insurance in certain situations.
Notwithstanding The Foregoing Alternatives
Attorneys, contract professionals, and legal writers have the difficult task of sometimes writing complex concepts in simple terms.
I have personally drafted thousands of contracts and have operated in transactional matters countless times and can tell you that sometimes it’s not as easy as it sounds.
Nonetheless, when drafting a contract or writing a legal document, your ultimate objective should be to keep the contract language as simple as possible.
If you want to avoid using legalese and complicated legal terms, here are a few alternative phrases you can use in your contract to achieve the same objective:
- Despite the previous provision
- In spite of the previous section
- without regard to the previous provision
- all the same
- in any event
In essence, the meaning of the phrase notwithstanding the foregoing is equivalent to its meaning in plain English.
Pros And Cons of Notwithstanding The Foregoing
Whenever you use the phrase “notwithstanding the foregoing”, you should be mindful of the ultimate reader of the document.
There are a number of advantages and disadvantages to using this phrase.
Here are some of the benefits:
- You can introduce exceptions or limitations to legal concepts
- You can introduce a limitation to a number of paragraphs all at once
The possible drawbacks are:
- You create confusion and interpretation challenges in the contract
- You do not subordinate the proper concept
- It may not be clear what is the “foregoing” concept you’re looking to limit or qualify
Notwithstanding The Foregoing vs Subject To
What is the difference between notwithstanding the foregoing and subject to in a contract?
It may appear confusing for a non-attorney or a person without contract training to easily distinguish between the meaning of notwithstanding the foregoing and subject to.
Notwithstanding the foregoing is a preposition that you’ll use to indicate that the concept you are introducing limits or qualifies the previous concept introduced.
Subject to is a phrase that you use to create a hierarchy between different provisions in a contract.
When a provision is “subject to” another provision, it means that the legal concept introduced must respect or observe the rights and obligations that were introduced in another provision.
So there you have it folks!
What does notwithstanding the foregoing mean in a legal document?
In a nutshell, the preposition phrase indicates that whatever concept is being introduced now should not be affected or governed by the concept that was just introduced.
In other words, what follows the “notwithstanding the foregoing” limits or qualifies what precedes it.
Notwithstanding means “although” or “nevertheless”.
Foregoing means “just mentioned” or “preceding”.
Now that you know the meaning of notwithstanding the foregoing in contracts, good luck in drafting your contract!
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