Define: Notwithstanding

What Notwithstanding Means in a Contract

"Notwithstanding" is a connective word used in contract drafting to mean "despite" or "regardless of." When a clause begins with "notwithstanding anything to the contrary in this agreement" or "notwithstanding clause X," it signals that the provision that follows takes priority over whatever it references, even if another part of the contract seems to say something different. It is a tool for resolving internal conflicts before they arise.

The word does not create new rights or obligations by itself. Instead, it functions as a hierarchy marker, telling a reader (and, if necessary, a court) which provision should control when two clauses appear to clash. This is particularly useful in long, layered agreements where multiple clauses touch on the same subject matter, such as liability, termination, or payment.

Because it carries significant interpretive weight, "notwithstanding" is one of those terms that looks small but can materially change how a contract operates in practice, especially during a dispute over which clause governs a particular situation.

How Notwithstanding Is Defined or Measured

There is no statutory definition of "notwithstanding" as such; its meaning is derived from ordinary usage and how courts interpret it within the context of the agreement. The law governing the contract will generally treat a notwithstanding clause as an express statement of the parties' intent to give one provision overriding effect over another.

Its practical effect is measured by scope: does it override the entire agreement, a specific clause, or a defined category of terms? A poorly scoped notwithstanding clause can create ambiguity rather than resolve it, particularly if two notwithstanding clauses in the same document each claim priority over the other.

• Broad scope: "Notwithstanding anything in this agreement" applies contract-wide.
• Narrow scope: "Notwithstanding clause 5.2" applies only to that specific provision.
• Conditional scope: "Notwithstanding the foregoing, if X occurs" ties the override to a stated trigger.

Where Notwithstanding Appears in Agreements

Notwithstanding clauses commonly appear in provisions dealing with limitation of liability, indemnities, termination rights, and confidentiality carve-outs. For example, a party might agree to broad confidentiality obligations but include a notwithstanding clause permitting disclosure where required by law or regulator, overriding the general confidentiality rule.

These clauses are especially prevalent in indemnity and liability sections, where a party may want a cap on damages to apply notwithstanding any other provision of the agreement, or conversely, may want certain liabilities to survive notwithstanding a general limitation clause. Readers researching how liability interacts with indemnities may find it useful to review discussions on indemnifying customers without unlimited liability, since notwithstanding language is often the mechanism used to carve out exceptions to liability caps.

Termination clauses also frequently use this term, for instance stating that a party may terminate for cause notwithstanding any cure period otherwise granted elsewhere in the agreement. This is closely tied to broader questions of how and when a contract can end, including scenarios explored in terminating a contract early without penalties.

Why the Exact Wording Matters

The precise phrasing following "notwithstanding" determines its reach. A vague reference, such as "notwithstanding the above," can be ambiguous in a document with multiple preceding clauses, leaving room for dispute about which provisions are actually overridden. Specific cross-references to clause numbers or defined terms reduce this risk considerably.

Conflicts between multiple notwithstanding clauses are a genuine drafting hazard. If clause 4 says it applies notwithstanding anything else in the agreement, and clause 9 says the same, a reader is left without clear guidance on which prevails. Courts interpreting such conflicts will look at the overall structure and apparent intent of the agreement, but this is a costly and uncertain way to resolve what should have been settled at drafting stage.

Industries with complex, multi-layered agreements, such as construction contracts involving multiple subcontracts and variation clauses, are particularly exposed to this risk, since overlapping notwithstanding provisions can easily proliferate across schedules and appendices.

Drafting Considerations

Drafters should use "notwithstanding" sparingly and precisely. Rather than defaulting to broad language like "notwithstanding anything to the contrary herein," it is generally better practice to name the specific clause or clauses being overridden. This limits ambiguity and makes the contract easier to interpret later, particularly for someone reviewing it without the benefit of the original negotiation context.

It is also worth checking, before finalizing an agreement, whether multiple notwithstanding clauses interact or conflict with one another. A careful review pass, ideally cross-referencing every instance of the word across the document, can catch these issues before signature.

Finally, drafters should consider whether a notwithstanding clause is truly necessary or whether the same result could be achieved through clearer clause ordering or an explicit precedence provision. Overuse of the term can make a contract harder to read and can itself become a source of disputes rather than a solution to them.