What Does Notwithstanding Mean in a Legal Sense
Although not commonly used in the modern vernacular, "notwithstanding" is still commonly used in legal documents both by drafters and in case law. When reviewing or preparing legal documents, it is not uncommon to see the word notwithstanding.
The general definition of the term – in a non-legal sense – is "in spite of." Use of notwithstanding in a sentence could look like, "Notwithstanding the rain, the festival was a huge success."
In legal documents though, notwithstanding is used to indicate an exception, or to reinforce that change in context or condition does not change the intent of the law or passage.
In addition to its use in robust legal documents like contracts and settlement agreements, notwithstanding is frequently found in both statutes and regulations. In the case of statutes, notwithstanding is often used to clarify the applicability of the law when applied to corporations or other legal entities . In other words, in writing statutory language that could otherwise be read to indicate a provision only applies to individuals or natural persons, notwithstanding is often used to clarify and expand its scope to apply to parties that are not, strictly speaking, individuals, such as corporate entities.
Here is an example of the use of notwithstanding:
Notwithstanding any provision of § 38.2-511, nonprofit hospitals … shall be subject to the provisions of [Virginia law] applicable to for profit hospitals if they make any distribution of assets in a substantial equivalent to a dividend when compared to their taxed net income as determined on their federal tax returns.
To further highlight its use in statutes and regulations, the following example is taken directly from federal law – 20 U.S. Code § 1070g(a):
Notwithstanding any other provision of law, the Secretary shall carry out a program of making loans to eligible lenders under this part for the purpose of providing supplemental loans to borrowers under this part.
Use of “Notwithstanding” in Legal Texts
Historically, "notwithstanding" has been widely used throughout history in statutes, court pleadings, and treatises focusing on law. In a 1731 work entitled A Continuation of the History of the Province and State of Pennsylvania, 1682-1759, author Samuel Hazard wrote at length regarding the ancient usages of the word "notwithstanding" in court pleadings, referencing a 1656 legal treatise written by John Henry Lord Coke (Cobbet Life 596), in which the phrase was used in the context of a usual formality of making a declaration, and, in some cases, a reference to a sovereign hand. Lampman v. Fordyce, 181 Mich. 512, 514, 144 N.W. 55, 56 (1913). Similar usages of the language and wording are often found within William Astell Powell’s 1697 "The Law of Contracts" (Hinds’ Law Library), in which Astell alternates the word "notwithstanding" with the word "notwithstanding the Statute" when discussing situations in which a contract was still legally binding, regardless of the general rule.
In a 1775 letter to John Adams, future president of the United States, founding father Richard Henry Lee directly referenced the language when discussing the terminology used in articles of confederation between the states. N. Kathr. Ryan, Understanding The Article "Notwithstanding" And Its Historical Applicability To Code Section 120.206, ABA Tax Mgmt. Memo (Aug. 3, 2010). Knowlton v. Moore, 178 N.Y. 502, 511, 70 N.E. 553, 556 (N.Y. 1904) also demonstrates the use of the word "notwithstanding" in the earlier American trial courts, which referenced its intended purpose as a "negative" in a sentiment, and its historic allusions to a "sovereign command".
The Impact of “Notwithstanding” on Interpretation
The word "notwithstanding" – informal as it may be – comes with no shortage of complications in the legal world. It can truncate the meaning of one clause, while expanding the breadth of another. It can protect the entirety of a statute from defeasance. It can override the common law. Or it can be interpreted so broadly as to all but render itself meaningless.
"Notwithstanding" clauses are implemented for the generally simple reason that any contract, statute, or other instrument of legal interpretation is subject to interpretational difficulty. A clause so ever-present in legal proceedings, however, "notwithstanding" is remarkably short on uniform application. In fact, even when the word is uniformly applied, its application is sometimes troublesome.
In the context of insurance policies, for example, courts apply "notwithstanding" to avoid a conflict between the general and the specific, thus rendering the specific provision conclusive. But sometimes, "notwithstanding" does not have that effect, and the use of "notwithstanding" clauses can allow courts to completely ignore a general rule or statutory requirement. So, because it can sometimes function as a superlative strengthener and sometimes as a softener, "notwithstanding" can play both hero and villain. And the same can be said for its use as a legal device.
One of the most prominent recent examples of "notwithstanding" is the class action waiver in the Epic Systems v. Lewis case that made it all the way to the Supreme Court. There, the Court was asked to determine the impact of a clause that purports to waive the right to pursue a class action, and whether that clause would be enforceable even if that pursuit is made available under the National Labor Relations Act (NLRA). Notwithstanding the NLRA, the Court held that the clause was enforceable, and thus had the same scope as any other contractual clause. For the Court, the fact that the NLRA clause made no mention of class actions did not mean that it applied to class actions in some way. Rather "[n]otwithstanding" meant "notwithstanding."
Of course, the other side of the coin is equally important: What happens when a "notwithstanding" clause is drafted so poorly or interpreted so widely that it has no effect whatsoever? Another recent Supreme Court case, Weyerhaeuser Company v. Ross, serves as an example. In that case, the Court was asked to determine the effect of a statute that read "Provisions in . . . management plans approved pursuant to . . . [the Endangered Species Act] may take precedence over conflicting provisions of State law." 16 U.S.C. § 1539(j)(2). To draw some parallels to the Epic case, the question was whether this clause meant that state law could never come into direct conflict with the Act’s management plan, or whether a direct conflict would not arise unless the plan was explicitly approved as being in direct opposition to state law. Ultimately, the Court found that the question was not entirely transparent, and remanded the case for an answer. For its part, Weyerhaeuser also appears to have assumed that "notwithstanding" means "notwithstanding," but, unlike in Epic, its use (or misuse) did not lead to much consequence.
"Notwithstanding," then, presents a series of headaches for drafters and courts, all while serving the superficially simple purpose of adding extra bite to a contract. As the Epic and Weyerhaeuser cases illustrate, the effect of "notwithstanding" can be extreme. Armed with that knowledge, though, parties can better draft (or negotiate) "notwithstanding" clauses with their intended effect in mind.
Misinterpretations of “Notwithstanding” in Law
Taken in isolation, the word notwithstanding might seem a basic and unproblematic addition to a legal clause. It might appear a simple substitute for ‘in spite of’ or ‘despite’, with a plain sense of forcing an exception to the writing that follows. This accords with our common-sense interpretation of the word. However, precise legal constructions may call for a more exacting application. Notwithstanding is a term of art primarily used in contract drafting and interpretation. The use of notwithstanding may help to overcome any contradiction, whether in signing important documents, waiving basic rights (where that is permitted), or superseding a party’s general powers. For example, notwithstanding the first paragraph of this blog, notwithstanding should have no bearing on its truth. The issue is therefore how notwithstanding is used – or misused in the legal drafting context . Below are two overriding misunderstandings of ‘notwithstanding’ and the possible consequences: The first issue arises where there exists a potential conflict between general and specific provisions. If both clauses are reasonable, then it may be difficult to decide which ought to take precedence. The second scenario concerns the use of qualifications, which can allow a party to escape liability where provisions are inconsistent. Such qualifications must be ‘clear, precise, and unequivocal’. Had the initial clause related to a ‘notwithstanding clause’, the court would still have found liability. The central lesson here is that the use of notwithstanding does not vitiate a provision, nor does it displace established rules of statutory interpretation. The key tools are context, the circumstances in which the agreement was entered into, and the intention of the parties. Like all appropriate terminology, notwithstanding should be used with care and precision.
Use of “Notwithstanding” in Statutes and Contracts
Although "notwithstanding" has not been frequently used in Federal statutes as described above, the Immigration Reform and Control Act of 1986 contains the following:
In construing the provisions of this Subchapter other than this subsection, the special rules for the determination of marital status contained in section 7703 of Title 26 and the regulations thereunder (consistent with the limitation of such section) shall apply to any individual under this subchapter in the same manner as such special rules apply to such individual for purposes of such section. The preceding sentence shall not be construed as affecting the imposition of any tax or the application of any provision under this chapter.
24 U.S. Code § 1392(a), codified in 8 USCA § 1255a(c)(4).
"Notwithstanding" is often found in the United States Code and the Code of Federal Regulations. It is used, for example, in OSHA to clarify that the exception does not apply given the specific statute involved:
(a) Notwithstanding any other provision of law, nothing in this section shall be construed to prohibit the disclosure of information by the Secretary only as follows:
(1) Disclosure may be made to officers or employees of the Occupational Safety and Health Administration or the National Institute for Occupational Safety and Health in the Department of Health, Education, and Welfare, as the case may be, but only to the extent necessary to enable such officers and employees to carry out their functions under this Act with respect to poisonous or toxic substances; or
(2) Disclosure may be made in a judicial proceeding if the court determines that the need for discovery in the proceeding outweighs the need for confidentiality.
29 C.F.R. § 1913.20.
Use of "notwithstanding" is common among government contracts in the Federal and State procurement statutes and regulations. For example, the Federal Acquisition Regulations ("FAR") provides that the President may by Executive Order increase the dollar thresholds for requiring competitive procedures.
"The President may, when it is determined to be necessary in the interest of the United States, by Executive order, increase (1) the dollar amounts specified in section 303(c) of the Federal Property and Administrative Services Act of 1949 (Public Law 152, 81st Congress), as amended, by $5,000, respectively; and (2) any dollar amounts in other sections of this Act requiring competition by negotiated procedures, as great a percentage as the percentages set forth in each such section. Notwithstanding any other provision of law, including section 3 of the Office of Federal Procurement Policy Act . . . , any reference to the Administrator of General Services in the provisions referred to in paragraph (1) of this section shall be deemed a reference to the President." 40 U.S.C. § 759.
In addition to common use in legal statutes and regulations, careful attention must be paid to the use of "notwithstanding" clauses in private contracts. Courts have interpreted the "notwithstanding" clause to override other provisions in the contract:
[The indemnification provision] can only be interpreted to mean that although defendant takes responsibility for its own negligence, plaintiff is still responsible for defendant’s acts of negligence. The indemnitor must assume responsibility for liability which is not its own.
Atlas Copco, Inc. v. Nw. Eng’g Co., 720 N.E.2d 1038, 1042 (Ind. Ct. App. 1999). The court reasoned that the notwithstanding clause does not exclude the other provisions, but rather makes the other clauses subject to the notwithstanding clause. In addition, "[w]hen an indemnity provision includes language such as that employed here and the specific harm for which indemnity is sought falls within the scope of the provision, a court must find that the provision indemnifies for that harm, even though it would normally be understood to indemnify for another, broader one." Amer. Acct. Group, Inc. v. C & L Pak., Ltd., 536 F. Supp.2d 787, 792 (N.D. Ohio 2008).
Issues to Consider When Using “Notwithstanding” in Legal Writing
As discussed above, "notwithstanding" has very broad meanings that can make it a very powerful tool in a lawyer’s writing arsenal. However, its very broad definitions mean that it can sometimes have unintended consequences. A few considerations about the appropriate use of "notwithstanding" in legal writing may be worth sharing.
First, the Maryland Rules of Court use "notwithstanding" at various locations to grant discretion to a judge. For example, the Maryland Rules of Civil Procedure relating to the award of attorneys’ fees state: "a court may award an attorney’s fee to a prevailing party or parties . . . notwithstanding any agreement between the parties to the contrary." "Notwithstanding" here indicates that the agreement of the parties to limit the power of the Court does not apply if the Court finds that it would be inappropriate and gives the Court discretion to grant a fee anyway.
By contrast, the Maryland Courts of Special Appeals and Appeals has stated that its "rule is that a ‘pay-when-paid’ provision in a construction contract is ‘inoperative in Maryland as a matter of public policy as between the contracting parties.’" (emphasis added). "Notwithstanding" would indicate that the Court was making a modification to that Rule, so that it applied only when the parties so agreed . "Notwithstanding" here reflects that the only conclusions a judge may draw from a "pay-when-paid" provision of any sort is one that applies in every case to every contracting party.
Effective use of "notwithstanding" then requires attention to its potential breadth. "Notwithstanding" is especially powerful when no boundary is placed on its ability to affect any and all parts of a contract. Care should be taken when including it with other words like "any" or "his/her/they." Reading these two clauses together renders "notwithstanding" potentially applicable to an entire contract. Although "notwithstanding" is a broad word that could arguably apply to the entire contract, it becomes even more powerful when applied by that pronoun as well.
Notwithstanding the powerful implications of such word combinations, I cannot imagine a situation in which any lawyer would seek to limit the reach of a court to enforce the provisions of a contract. Therefore, it is not difficult to imagine how a powerful and broad word like "notwithstanding" might result in serious limitations to a party’s rights if combined in the wrong context. Care should be taken to avoid seeking to limit the general rules with the power of a broad word like "notwithstanding".
