Use of the term notwithstanding any other provision to the contrary or other provision hereof may assist you in adjusting certain contractual rights and obligations without altering other aspects of the contract. There are other ways to negotiate exceptions in contracts (e.g.B. except and subject to), but I`ll keep the broader issue of exceptions in general for another blog post. For now, I want to discuss the virtues and vices of doing nothing. Let`s start with the vices. On April 5, 2018, the Appeal Division of the First Division rendered a decision in Veneto Hotel & Casino, S.A. v. German American Capital Corp., 2018 NY Slip Op. 02414 (here), in which it concluded that an “whatever” clause prevailed over an adversarial provision of the contract under consideration. In our example above, it is clear which rule is subordinate anyway, since this rule is explicitly referenced. Nevertheless, this agreement is often coupled with something to the contrary.
In other words, it often serves as a global rule that trumps everything. The “contrary” provision could be found in the previous provision immediately. Or it could be 80 pages away. In the end, I tend to stay away. It is more detailed than other methods of subordinating language, and if coupled with something to the contrary in this agreement, it can influence the provisions without warning. In addition, there may be ambiguities. That being said, I tend to use from time to time. But I do it consciously and for practical purposes.
Notwithstanding anything to the contrary in this Agreement, this may be particularly useful if your customer is the beneficiary of the Trumping language, if you and your customer are convinced that the Trumping language should apply in all cases, and if you are concerned not to “catch” one or more provisions that should be subordinated. However, the use of the word in contracts is no different from its simple and ordinary English meaning. Whatever the means, nevertheless, nevertheless, although without regard or hindrance by other things, but in any case, in any case, nevertheless, still. As a subject, the word does not prioritize provisions anyway. The spread rate can also be used to remotely effect a change in the classification of rights and obligations in a contract. Let`s look at typical scenarios or why this term can be used in contracts. There are many ways to write the sentence despite things to the contrary to mean the same or something similar, such as: In an ideal world, you would know your contract like the back of your hand. The treaty would be unambiguous and would be perfectly easy to read. In addition, all parties would have a clear understanding of how all the provisions of the contract work together. Although we strive to achieve these features when designing, the practicalities of the day creep in and do so quite quickly. We do not always have the time or money to analyze each provision of one or more contracts to determine whether that provision should be subordinated or not. And we could have a fairly clear directive that the exception should be omnipotent.
For example, if my client tells me that, in particular, the company cannot be held liable for more than $50 million under the contract or with respect to matters relating to the contract, you can bet that, despite the contrary provisions of this provision similar to an agreement implementing this concept, I will come across a non-governmental statement. The word trotz is synonymous with disobedience, and the author of the contract can use any work he desires for the purpose of emphasis. If the documents have been omitted, the clause is still understandable. The goal, on the other hand, would emphasize the relationship with the exception and the main rule. Veneto teaches that these basic principles remain firmly rooted in New York law. In Veneto, the wording of the contract was clear. And to the extent that there was a dispute over the effect of the wording of Article 3.1.11(a), the tribunal left no doubt that this wording should be applied in accordance with its terms, even though the effect of the “whatever” clause contradicts other provisions of the contract and would “require.” a [contradictory] result”.` Cisneros, 508 U.S. to 18. What does “regardless of things to the contrary” mean? GACC argued that Article 3.1.11(a) of the Loan Agreement gives GACC the discretion to order the account trustee not to transfer funds to Veneto.
The GACC also argued that the “regardless” clause in paragraph 3.1.11(a) prevails over the obligations of paragraph 3.1.7(a) – i.e. Since the loan agreement defined “obligations” as “all debts, obligations and liabilities” owed to Veneto GACC under the loan agreement, section 3.1.11 allowed it to suspend the standard cash flows prescribed in section 3.1.7 (a) in the event of default and to keep these funds for itself. Best practices – regardless of the above. Notwithstanding the above, this may seem relatively harmless, since the provision on undercuts appears to be close, but the above could potentially refer to the previous sentence, the entire previous part of the body of the contract, or something in between. With respect to the “whatever” clause, the Court noted that “even if paragraph 3.1.7(v) could be interpreted as inconsistent with paragraph 3.1.11(a), paragraph 3.1.11(a) would still take precedence because of the `misleading` wording found in that section.” Citation Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc., 112 A.D.3d 78, 83 (1st Department 2013). Section 3.1.11 provided that “it would apply `notwithstanding anything to the contrary` of the loan agreement”.
Thus, the court held that “the defendant acted within the limits of the powers and discretion conferred on him under Article 3.1.11(a).” In another clause, you can say that, notwithstanding anything to the contrary, the customer is responsible for paying a $100 cancellation fee. When a lawyer uses the phrase “notwithstanding anything to the contrary” in contracts, the objective is to ensure that the contractual provision referred to substantially replaces any other provision of the contract relating to the same or potentially contradictory subject matter. A contract I recently analyzed and a blog post I read recently gave me the inspiration to write an article about it. On a fairly regular basis, I meet and keep busy regardless of the contracts. What does this potentially intimidating word mean? I consider it “nevertheless”. Nevertheless, it is used to create exceptions to the rules of a contract or to circumstances or events. For example, suppose we have the following provisions in a sublet between Bert and Ernie: after all, a subtle difference may be the meaning of the equality of provisions that is conveyed, despite the fact that one clause is clearly subordinated to another, but this does not necessarily mean that the referenced clause overlaps or is contradictory. .