Just as contractors use holds to make final adjustments to their work, rather than tearing up and replacing other aspects, lawyers will use ”independently of other provisions” as a means of adjusting the contract without tearing up and replacing other provisions. Real meaning. The use of the word in contracts is no different from its simple and ordinary English meaning. Nevertheless, the following meaning has: let us be honest, sometimes we want uncertainty in the Treaty and at other times we want more security. Suppose Bill visits medieval England on Wednesday. He can tell Ted that he went to England on Wednesday. But can he tell Ted that he visited England in 1431 with his time machine? The last sentence would not necessarily allow that conclusion; it is not clear ”how far the above goes”. With this provision, the contractor specifies that even if the price is fixed, a change in the price of materials may result in a change in the total cost of the project. In order to avoid unwanted design issues to your detriment, it may be helpful to make it clear which other provision of the contract you may want to prevail with the opposite sentence. A related problem is that when you negotiate a 90-page document (or multiple 90-page documents), you end up with more than one global rule. Then the question arises, who ”wins” despite this. I`ll post an example of this tomorrow using our friends Bert and Ernie.
There are many ways to write the sentence independently of the opposite things to mean the same or something similar, such as: Regardless of the above, if the cost of materials increases, the price will be adjusted accordingly. The sentence of the above often occurs in contracts. I have not found a court decision questioning the meaning of the above, but I do not feel the need to wait for such an opinion: as it may not be clear what the above refers to, I recommend that you do not use the above. If one clause in a contract says that a customer can terminate the contract at any time without penalty, and another says that, despite any provision to the contrary, there will be a termination penalty of $100, how should you interpret that? If you know that there are other provisions in your contract and that these provisions will likely have to be subordinated to the general rule, then instead of saying ”subject to the [trump rule]” when inserting a new provision, you should simply apply your trump rule, regardless of any provision to the contrary in the contract. Also, you may want to do this to avoid negotiating with your counterparty about whether or not a particular provision requires subordination. And in practice, once you have taken the path of using it subject to subordinate provisions, it may be difficult later to backtrack and implement it in this agreed approach, notwithstanding any provision to the contrary. ”Environmental Liability” means any potential or other liability (including any liability for damages, environmental investigation or remediation costs, fines, penalties or compensation) of the Operations or any Subsidiary resulting directly or indirectly from or on the basis of (a) violations of environmental laws, (b) production, use, handling, transportation, storage, treatment of hazardous substances, (c) exposure to hazardous substances, (d) release or threat of release of hazardous substances into the environment, or (e) consensual contracts, agreements or other agreements under which responsibility is assumed or imposed in respect of any of the above events. The notwithstanding rate can also be used to remotely change the classification of rights and obligations in a contract. But while the above probably doesn`t cause confusion, it`s best to remove the above from your lexicon so you don`t use it in a context where it`s a nuisance or worse. In the end, I tend to stay away anyway. It is more detailed than other methods of subordinating language, and if it is associated with something to the contrary in this Agreement, it may affect the provisions without warning. In addition, it can lead to ambiguities.
That being said, I tend to use it from time to time anyway. But I do it consciously and for practical reasons. In particular, notwithstanding anything to the contrary in this Agreement, it may be particularly useful if your customer is the beneficiary of the Trump language, if you and your customer are convinced that the Trump language should apply in all cases, and if you are concerned not to ”seize” one or more provisions that should be subordinated. Let`s look at typical scenarios or why this term can be used in contracts. The word trotz is synonymous with defiant, and the author of the contract can either use the work he wants for accentuation purposes. If omitted subject to the article, the clause is still understandable. The goal, on the other hand, would emphasize the relationship with the exception and the main rule. If a lawyer uses the phrase ”notwithstanding anything to the contrary” in contracts, the purpose is to ensure that this contractual provision supersedes any other provision of the contract on the same subject matter or can be substantially contradictory. For example, suppose you want to implement an asset rule in your contract. Let`s say you know your contract like the back of your hand and have identified 23 provisions that must or must be subordinated depending on the circumstances.
Instead of specifying separately the 23 separate provisions that should be subordinated, notwithstanding any provision to the contrary in this agreement, could do the trick, especially if your client is the beneficiary of the Trumping rule. This is a clear indication that you are undermining Section 5 instead of letting yourself guess which other provision of the contract is inferior. For example, a contractor may sign a contract with a client and say the work can be done for a total cost of $10,000. From a purely academic and theoretical point of view, it makes sense in many cases not to use the opt-out clause. Whenever a lawyer is tempted to introduce a ”whatever” clause into an agreement, they should step back and find a way to make the point well, once, and in a way that any reader (i.e., the court) will understand. And if the lawyer still can`t resist the temptation, he should at least clarify what ”here” means. ”Subject” and ”regardless” are two terms that can be confusing when used in contracts. The expressions essentially mean the same thing, but nevertheless appear in a predominant clause while appearing in a replaced clause. What does ”regardless of things to the contrary” mean? 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. While we strive to achieve these qualities when designing, the practicalities of the day creep in and do so pretty quickly. We don`t always have the time or money to analyze every provision of a contract or multiple contracts to determine whether that provision should be subordinated or not. .