The foregoing notwithstanding? Or, notwithstanding the foregoing? In my experience, most lawyers don’t give much thought to the distinction between the two. But, is there not a critical difference? Let’s look at some examples.

A Primer on the Proper Use of ‘Notwithstanding’ in Contracts

In a past life, a transactional attorney I worked for once told me that my edit to move “notwithstanding” within a contract provision was “personal preference.” Since that day I have always carefully scrutinized the use of this term in contracts. As can be demonstrated with a relatively simple example, the placement of this word—frequently in either “The foregoing notwithstanding,” or “Notwithstanding the foregoing”—can completely alter the effectiveness and enforceability of competing language in an agreement.

“The foregoing notwithstanding” or “Notwithstanding the foregoing”?

Consider the following relatively typical contract term and renewal option provisions:

1.1          This Agreement will expire on the fifth anniversary of the Effective Date.

1.2          The foregoing notwithstanding, ABC Company will have the option to renew the Agreement for an additional five-year term by giving at least thirty days’ advance notice to XYZ, Incorporated.

Now, compare the same clauses with relocation of the word “notwithstanding” in Section 1.2:

1.1          This Agreement will expire on the fifth anniversary of the Effective Date.

1.2          Notwithstanding the foregoing, ABC Company will have the option to renew the Agreement for an additional five-year term by giving at least thirty days’ advance notice to XYZ, Incorporated.

In the first example, the first clause does not “withstand” the second clause. This means that to the extent the provisions are inconsistent, the second clause controls. So, ABC Company has a renewal option as long as it provides at least thirty days’ notice to its counterparty.

In the second example, however, the second clause does not “withstand” the first clause. This means that the renewal option in Section 1.2 is subject to the term limit in Section 1.1—effectively rendering the renewal option a nullity.

ABC Company could certainly argue that the intent is clear enough (presumably the parties would not insert a renewal provision into their agreement if they did not intend for it to have any force or effect), but why permit the ambiguity to exist in the first place? If the parties’ relationship is lucrative for ABC Company but a drain on resources for XYZ, Incorporated (and XYZ does not have any other options to terminate the contract), the parties could very well end up in a contentious dispute about ABC Company’s right to renew.

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