Define: Notwithstanding the foregoing

What "notwithstanding the foregoing" means in a contract

"Notwithstanding the foregoing" is a drafting signal that introduces an override. It tells the reader that the words that follow apply in spite of, and take priority over, the provisions that came before. In effect it carves out an exception: even though the earlier text says one thing, this next statement controls if the two would otherwise conflict. Because it reorders the priority of clauses, the phrase is powerful and, when used carelessly, a frequent source of confusion.

Where the term appears

The phrase is standard boilerplate across almost every kind of agreement. It commonly appears in limitation-of-liability and indemnity provisions, for example in a hold harmless agreement where a general protection is qualified by a specific exception. It also features in consumer and commercial standard terms, such as terms and conditions, where a broad rule is followed by a narrower override that must clearly prevail.

How it operates and is interpreted

The phrase works by establishing precedence between two provisions. "The foregoing" refers to the preceding text, and "notwithstanding" means "despite," so the combined effect is that the following provision wins over what came before. The scope of "the foregoing" is where problems arise: does it override only the immediately preceding sentence, the whole paragraph, or the entire preceding section? Because the phrase itself does not answer that, careful drafters specify exactly what is being overridden rather than relying on the reader to guess.

Why the exact wording matters

An override clause can quietly reverse the deal the parties thought they had struck. If "notwithstanding the foregoing" is placed after a carefully negotiated limit, it may cancel that limit entirely, or only partially, depending on how far its reach extends. Disputes turn on whether the override was meant to trump one clause or many. The safest practice is to replace the vague reference with a precise one, for example "notwithstanding clause 7.2," so there is no argument about which provision yields. Vague overrides also interact awkwardly with conditions and carve-outs, as explored in guidance on drafting a conditions precedent.

Drafting considerations

• Name what is overridden. Refer to the specific clause number rather than the open-ended "foregoing," so the scope is beyond dispute.
• Check for conflicts. Make sure the override does not unintentionally cancel protections the parties intended to keep.
• Use it sparingly. Stacking multiple "notwithstanding" clauses can create circular priority, where each claims to trump the others.
• Consider a priority clause. For complex documents, an order-of-precedence provision can be clearer than scattered overrides.

The phrase carries real weight in liability allocation, which is why it is examined closely in discussions of how obligations move between parties, such as the explanation of how an assignment of contract transfers legal obligations. In each case the question is the same: exactly which earlier terms does the override displace?

In short, "notwithstanding the foregoing" is a precedence tool that says "this controls, despite what came before." Its usefulness depends entirely on clarity of scope. Naming the specific provision it overrides, and using it only where a genuine exception is intended, turns a notorious source of ambiguity into a precise instrument. How an ambiguous override is read will ultimately depend on the law governing the contract, so precision at the drafting stage is far safer than argument later.