LEGALESE: Part 3 - "NOTWITHSTANDING"

LEGALESE: “NOTWITHSTANDING”

“Notwithstanding”. It’s a bit of a mouthful. When used in a contract the term indicates that what is being said in a clause (Clause 2) takes priority over the contents of another clause (Clause 1). Clause 1 will set out the main rule and Clause 2 will create an exception to that rule.

The term “notwithstanding” can be used to achieve the same effect as the phrase “subject to” but its placement in a contract will differ in that the word “notwithstanding” will generally appear in Clause 2 (the exception clause) whereas the words “subject to” will generally appear in Clause 1 (the main rule clause). “Notwithstanding” therefore looks back whilst “subject to” looks forward.

Example:

Clause 1: Neither party to this Contract shall assign its rights under this Contract.

Clause 2: Notwithstanding Clause 1 the Seller may assign its rights under this Contract from the date falling 12 months after the date of this Contract.

The effect of the above is that neither party can transfer their rights under the contract (main rule) except that the seller can once 12 months has passed from the date of the contract (exception to the main rule).

In plain English “notwithstanding” essentially means “in spite of”.

Should you need expert legal advice regarding a contractual matter, please contact Joseph Seyed Hossein at joseph.hossein@fieldingsporter.co.uk or telephone 01204 540 900 or 0161 834 4722.

The contents of this article are for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.