In a contract, “notwithstanding the foregoing” means that despite whatever the document just said, the sentence or clause that follows controls instead. It is an override signal: the earlier language still exists, but where it conflicts with what comes next, the later provision wins. The U.S. Supreme Court described the effect this way, holding that a notwithstanding clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”1Justia. Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993)
Break the phrase apart and it explains itself. “Notwithstanding” means “not withstanding” — the earlier provision cannot stand up against what follows. “Foregoing” means what came before. Put together: what came before does not stand in the way of what comes next.
A Simple Example
Say Section 3 of a supply contract requires the vendor to deliver all goods within 30 days. Section 4 then reads: “Notwithstanding the foregoing, rush orders shall be delivered within 5 business days.” The five-day rule controls for rush orders. Section 3 still governs every other order; the notwithstanding clause carves out an exception rather than wiping out the earlier rule.
You may see the same idea written as “the foregoing notwithstanding” or “anything contained herein to the contrary notwithstanding.” Different words, same override.
The Mirror Phrase: “Subject To”
“Subject to” points the opposite direction, and mixing the two up flips which clause wins.
- “Notwithstanding Section 5” — the clause you are reading beats Section 5 if they conflict.
- “Subject to Section 5” — Section 5 beats the clause you are reading if they conflict.
Both phrases warn that a conflict is possible and tell you which side prevails. When you see “subject to,” the referenced provision has priority. When you see “notwithstanding,” the provision in front of you has priority.
“Notwithstanding the Foregoing” vs. “Notwithstanding Anything to the Contrary”
These two phrases look almost identical and behave very differently.
“Notwithstanding the foregoing” overrides only what came before it in the document. Its reach is backward. If a conflicting provision appears later in the agreement, this phrase does not touch it.
“Notwithstanding anything to the contrary” (or “notwithstanding anything herein to the contrary”) overrides the entire agreement in both directions, before and after. It works as a global trump card. Drafters use the broad version when they want a provision to prevail no matter where the conflict sits.
The most precise option is naming what is being overridden: “Notwithstanding Section 5.2” leaves nothing to argue about.
Where the Phrase Usually Shows Up
Long contracts create tension between provisions, and this phrase is the standard tool for resolving it. Common examples:
- A limitation-of-liability section caps damages, and a later clause states that the cap does not apply to breaches of confidentiality.
- A nondisclosure clause protects proprietary information, and a notwithstanding provision permits disclosure when required by law or court order.
- General payment terms establish a schedule, and a notwithstanding clause accelerates payment on default.
- A long-term commitment locks in obligations, and a notwithstanding clause preserves a right to terminate for convenience under defined conditions.
Each of these is a deliberate carve-out. The earlier rule remains in force everywhere it is not overridden.
How Far Back Does “Foregoing” Reach?
This is where most disputes start. “Foregoing” means “what came before” — but the immediately preceding sentence? The whole section? Everything from page one forward?
Courts generally read a qualifying phrase as applying to its nearest antecedent unless the logic of the agreement requires more. In most contracts that means “notwithstanding the foregoing” reaches back to the provision directly above it. When a clause logically conflicts with several earlier sections, a court may read “foregoing” to cover all of them. Reasonable people can disagree about how far the word reaches, and that disagreement is what fills courtrooms.
If you are reviewing a contract and see the phrase, look at the section immediately above first, then read outward until you find the provision the drafter appears to be overriding. If more than one earlier section could be the target, that ambiguity may matter later.
How Courts Read These Clauses
A few principles guide how judges handle notwithstanding language when parties fight over it.
Courts try to harmonize provisions before declaring a conflict. If two clauses can be read consistently, that reading wins and the override never triggers. The notwithstanding effect only kicks in when there is a genuine clash.
When harmonization fails, specific provisions normally beat general ones. A notwithstanding clause can reverse that default. If a general provision says “notwithstanding” a specific one, the general provision controls because the drafter said so in plain terms.
Ambiguous notwithstanding clauses tend to be read against the drafter under the contra proferentem rule. The party who wrote unclear language bears the cost of the ambiguity, which matters most in adhesion contracts and insurance policies where one side controlled the wording.
The takeaway from the case law is consistent: courts will enforce the override when the drafter was precise, and they will second-guess it when the drafter was vague.
If You Are Drafting the Clause
Almost every fight over a notwithstanding clause is avoidable at the drafting stage.
Name the specific section being overridden. “Notwithstanding Section 5.2” is always clearer than “notwithstanding the foregoing.” Adding a parenthetical title helps if section numbers shift during revisions: “Notwithstanding Section 5.2 (Limitation of Liability)” survives renumbering because a court can still tell what you meant.
Use the phrase sparingly. When every other section claims to override something, the hierarchy collapses and nothing has priority. Each notwithstanding clause should resolve a real conflict that restructuring cannot eliminate. Often the cleaner fix is rewriting one of the provisions.
Ask whether you need the full construction at all. “Except as provided in Section 9.3” or “this section does not limit Section 9.3” often does the same work in plainer language. Save “notwithstanding” for the situations where you genuinely need one provision to trump another that a reader would otherwise assume controls.
Before signing anything, search the document for every use of “notwithstanding” and map what overrides what. If two clauses each claim priority over the other, you have a circular override, and no amount of textual analysis will unwind it after the fact. Fix it on the page, not in court.