The “n-word” is still a much-loved favourite with contract drafters, even in the 21st century. But the word itself is archaic and a clear hangover from days gone by, along with many other legalese dinosaurs (hereinabove mentioned, forthwith, et al ).






A typical example of usage would be “Notwithstanding anything mentioned herein which may be construed to the contrary, the title shall not be effective until…” This means basically that the provision in question will prevail over any other regulations of the agreement or elsewhere. Subordinating provisions, which are not of an overriding nature, are often prefaced with the phrase subject to. Thus, we can often find contract conditions which start out along the lines of “Subject to the requirements of applicable mandatory law, the Supplier shall…”

The question to be asked in all cases is if this is really necessary. In many situations, subject to and notwithstanding are simply redundant. As with subject to, it would be difficult for a party to argue that a clause inserted notwithstanding another provision was not intended to operate as a deviation or as limitation of the other provision despite unambiguous and precise wording. The clear principle of legal drafting is that a specific regualtion prevails as an exception over a general rule (lex specialis derogat legi generali). But, since lawyers seem to like the belt-and-braces drafting tradition, the expressions continue to be used to excess.

So, notwithstanding the immediately preceding paragraph hereinabove, but subject to a bit of common sense, please continue to draft with the dinosaurs, if you really must. The most important point, however, is that you can clearly and unambiguously understand the intended meaning in your next adventure in a contractual “Jurassic Park”.