In a contract, “notwithstanding anything to the contrary” means the sentence it introduces wins if it conflicts with any other provision in the document. The clause carrying those words outranks the clauses around it. Everything else in the agreement that says something different is subordinated to this one.
Why Drafters Put It There
Contracts are long, and different sections often pull in different directions. A confidentiality clause might restrict sharing information while an audit provision requires disclosure. When both cannot be honored at once, “notwithstanding anything to the contrary” tells the reader which instruction to follow.
This matters most for heavily negotiated deal points. If two companies spend weeks hammering out a liability cap, they don’t want a boilerplate indemnification clause buried in an exhibit to quietly erase that cap. Attaching the phrase to the liability cap locks it in place, even if some other paragraph seems to say the opposite. Without override language, a court interpreting the conflict has to fall back on general rules of construction, including the old principle of contra proferentem, which resolves ambiguity against whoever drafted the contract. The override removes that uncertainty before it starts. There is no tie to break because the contract declares its own winner.
How Far the Override Reaches
The words that come immediately after the phrase decide how much of the document gets overridden. The difference between a wide and narrow scope can shift significant exposure, so this is where careful reading pays off.
- Broad: “Notwithstanding anything to the contrary in this Agreement” beats every other sentence in the entire contract, including exhibits, schedules, or attachments incorporated by reference.
- Mid-range: “Notwithstanding anything to the contrary in this Article IV” overrides only the provisions within that article, leaving the rest of the contract intact.
- Narrow: “Notwithstanding anything to the contrary in Section 10.2” limits the override to a single identified section. Everything outside that section is unaffected.
Broad overrides are common in negotiated term sheets and side letters, where one document is meant to govern over a larger master agreement. Narrower overrides tend to appear in contracts assembled from standard form sections, where the drafter needs to carve out a specific exception without disturbing everything else. When you see the phrase, the first thing to check is how wide it reaches.
“Notwithstanding” vs. “Subject To”
These two phrases do opposite things, and confusing them is one of the costlier mistakes in reading a contract. “Notwithstanding” elevates the clause it introduces. “Subject to” subordinates it.
When a provision says it applies “subject to Section 8,” Section 8 is the boss. If Section 8 and the current clause disagree, Section 8 wins. The current clause only operates within the space Section 8 allows. A late-payment fee “subject to” a grace period only kicks in after the grace period expires. The grace period has the higher rank.
Flip the language, and the hierarchy reverses. If the late-payment fee provision begins with “notwithstanding the grace period,” the fee applies regardless of whether the grace period has run. Same two provisions, opposite outcomes, all because of a single introductory phrase. The key is directionality: “notwithstanding” pushes other clauses down, while “subject to” lifts other clauses up.
Common Variations and What They Mean
Drafters swap in different words after “notwithstanding” to adjust the override’s reach. These variations look minor but can change which parts of a document get overridden.
- “Notwithstanding the foregoing” limits the override to text that came before this clause. Anything appearing later in the document is not affected. Drafters use this to clean up inconsistencies in preceding sections without preempting what comes next.
- “Notwithstanding anything herein” generally covers the entire document, though some courts have read it more narrowly to apply only within the section where it appears. That ambiguity makes this phrasing less predictable than a version that explicitly references “this Agreement.”
- “Notwithstanding anything hereunder” typically refers to obligations created by the contract rather than its text. The distinction is subtle: “herein” points to the words on the page, while “hereunder” points to the duties those words create.
Named sections are safer than vague pointers. “Notwithstanding Sections 3.1 and 4.2” leaves little room for argument; “notwithstanding the foregoing” leaves plenty.
When Two Override Clauses Collide
Contracts sometimes end up with two provisions that both claim to override everything else. This happens more often than you’d expect, especially in complex deals assembled from multiple templates or negotiated across several drafts. When Section 5 says “notwithstanding anything to the contrary” and Section 12 says the same thing, and the two sections conflict, the override language alone can’t solve it.
Courts facing dueling override clauses fall back on the traditional rule that a specific provision controls over a general one. If one clause addresses a narrow, defined situation and the other is broad boilerplate, the narrow clause wins. The logic is that the parties likely negotiated the specific provision with that particular scenario in mind, while the broader clause was meant to handle everything else.
If both provisions are equally specific, a court has to dig into surrounding context, negotiation history, and the overall structure of the agreement to figure out what the parties actually intended. That process is expensive and unpredictable. If a contract contains more than one “notwithstanding anything to the contrary” clause, the two should not aim at the same target.
What the Phrase Cannot Do
A notwithstanding clause can override other provisions within the same contract. It cannot override the law. This is the limitation most likely to surprise someone reading a contract for the first time.
No matter how broadly the clause is worded, it cannot make an illegal term enforceable. If a contract requires something that violates consumer protection law, wage-and-hour regulations, or anti-discrimination statutes, stamping “notwithstanding anything to the contrary” on the provision does nothing to save it. Courts will strike or refuse to enforce contract terms that conflict with mandatory statutory protections, regardless of the override language attached. A landlord cannot waive habitability requirements through override language, and an employer cannot contract around overtime laws by declaring a clause “notwithstanding” everything else.
The same skepticism applies when the phrase appears in statutes. A federal law might say “notwithstanding any other provision of law” to signal that it overrides conflicting statutes, but courts don’t always read that literally. The Congressional Research Service has noted that courts have “repeatedly held that the phrase ‘notwithstanding any other law’ is not always construed literally” and does not automatically require an agency to “disregard all otherwise applicable laws.”1Every CRS Report. Statutory Interpretation: General Principles and Recent Trends The broader the override tries to be, the more skeptically it tends to be read.
How to Read It When You See It
If you spot “notwithstanding anything to the contrary” in a contract, lease, or loan document, slow down. The sentence is telling you it outranks other parts of the agreement. A few things to work through:
- Identify the scope. Check the words right after the phrase. Does it reference “this Agreement” (broad), a specific section (narrow), or “the foregoing” (backward-looking only)?
- Find what it overrides. Read the rest of the document for any clause that says something different from this one. Those conflicting clauses are now subordinate.
- Check for competing overrides. Search the document for other “notwithstanding” clauses. If two exist on related topics, figure out which is more specific to your situation.
- Remember the limits. The phrase cannot waive your statutory rights or make an illegal provision enforceable. If the overriding clause seems to require something the law prohibits, the law still wins.
Contracts with multiple notwithstanding clauses deserve extra scrutiny. Each one reshuffles the priority of the provisions around it, and when they interact poorly, even the lawyers who drafted them may disagree about which clause actually controls. If the stakes are high enough to worry about, they’re high enough to get a second opinion on.