Notwithstanding What We Write Today, Little Will Change

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“Notwithstanding,” is the draftsperson’s blanket cure to gaps or deficiencies in a document. It is an efficient, fast way to deal with an exception to a generality. As such, sentences beginning with this magic word are useful. They enable us to employ overbroad clauses because “notwithstanding” pulls our language back for the exceptions we have thought about. In other words, carefully written, they achieve the desired purpose.

The ubiquitousness of the “notwithstanding” sentence, however, has a downside – its presence is easily forgiven. Another issue is how we employ this device. Do we write: “Notwithstanding anything to the contrary in the paragraph” or is it: “Notwithstanding anything to the contrary in this document”? Experienced or thoughtful readers know where we are going here. The more limited this caveat’s coverage, the safer it is to use. We only need to focus on a single paragraph or section in a document if our “notwithstanding” carve-out is limited to those words. But, when we encounter the broader statement, that the carve-out affects an entire document, we expose ourselves and others to greater danger. Have we reviewed every other word in the document to see if that word will be modified by our “notwithstanding” language? Ruminations will go out on a limb and venture: “No.”

Fortunately, problems don’t arise very often. That’s mostly because the carve-out text, the “notwithstanding,” is pretty limited and is specific to a single area of concern. On their face, the scope of most of these “notwithstanding” sentences is self-limiting by their use of narrow words. For example, when they list “ad valorem taxes” as an exception to some provision, struggling over whether this will affect roof repair obligations will be a waste of time. But, sometimes, the carve-out language is broader. When broad language is part of a “notwithstanding … in the document,” much more care has to be taken.

Take the case of: “Anything in this Agreement to the contrary notwithstanding, [] hereby waives and releases …” What about places in the Agreement specifically designed to provide for a party’s liability to the other party? Those willing to go to court for an answer will discover that, in most cases, a court will validate a specific provision over a general provision. So, in most cases, a provision explicitly assigning liability will not be overwritten by such a “notwithstanding” one. But, we say “most.” And, going to court costs money, takes time, and creates enemies. [If not “creates,” then it can make the relationship a permanent one.]

But, that’s not where the most common problem with “notwithstanding” comes up because draftspeople can be careful to minimize such internal conflicts, especially when starting with frequently used form documents. Where we see the greatest number of problems are with last-minute additions or changes to a document. The pressure is on – the parties want to sign. There is one issue remaining or a new issue rears its head at the last minute and we need to “plop” in a custom provision. Perhaps it will be in the repair section. Maybe the parties have finally agreed that the landlord, not the tenant, will repair the roof. So, will the landlord be liable for damage to the tenant’s property if the landlord breaches this obligation? The parties have “fought” over the roof. The tenant expects that there will be a consequence of the landlord’s failure to make a repair. But, elsewhere in the lease, a “notwithstanding” provision says that the landlord won’t be liable for water intrusion. What was intended? Who knows?

There is no universally successful approach beyond re-reading a document, in its entirety, after every change is made. There is no substitute for “knowing” the entire document. More efficient approaches include avoiding the “anywhere” in this document approach. Other approaches are to be sure to place related provisions in proximity to each other. Don’t put a last-minute “insurance” related clause at the end of the document where the insurance provisions are in the middle. When the parties finally agree that one party will reimburse another for damage caused by the reimbursing party, recognize that insurance might have covered such a loss. So, place that provision near the insurance language and realize that insurance is implicated. Then, read the document to make sure that its existing text doesn’t say that “no party will have any liability to the other if the other’s insurance policies cover the loss.” Or worse, “if the other party could have insured for such a loss.” After all, what did the parties intend when they made their last-minute change? Didn’t they remember that the risk of the argued-over loss was already covered by the insurance provision and its “notwithstanding” language?

And, the best approach is to avoid “last-minute” changes, ones made without time for reflection or thoughtful drafting.

At a minimum, if we are going to add a last-minute provision to a carefully thought-out document, searching for the “notwithstanding” sentences might make sense. And, it might be worth an hour or so to review each form document using the same approach – find each “notwithstanding” and focus on whether its scope is limited to its intended purpose. Technology will find this “signal” word, but our “skill” will evaluate its effect.

Drafting “good” documents takes thought and work. We know that because many litigated disputes aren’t over the substance of the dispute, but over what the parties intended when they memorialized their agreement.

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Comments

  1. Margaret Petersen says:

    Hi Ira – This is a good posting on the general topic of Devil is in the Details – often a BORING subject to those who aren’t required to get deep into the weeds of drafting a document. It’s also a great reminder about these “exception” sentences. When drafting an exception, as you note, I try to include a reference back to the specific general clause to which I’m drafting this one exception, so I’m relieved to see you note that item. Also, even though it can make the sentence longer, I lean toward ” …; provided, however, …” and then go on to detail the exception as part of making it clear that this last part of the sentence is “excepting” the first general part of the sentence. I’m also a fan of using subsection numbers wherever useful, such as (a), (b), (c), or similar, and then the exception can specifically reference the general provision that is identified by the particular subsection numbers (if this otherwise works in the sentence). Drafting documents can feel like such a high wire act at times!

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