THE TERMS “SUBJECT TO”, “NOTWITHSTANDING” OR “WITHOUT PREJUDICE”: WHICH ONE SHOULD YOU CHOOSE?

I was recently reading this interesting article by Andrew Nickels about the clauses “subject to”, “notwithstanding” and “without prejudice” and it got me thinking how useful the clarification of these terms would be for the purposes of legal translation.

Every legal translator has encountered one or all of these terms in a contract or some other legal document they had to translate, either to or from English. These shorthand expressions prove to be useful tools in saving time when it comes to drafting a contract and that’s why lawyers and legal practitioners use them often.

What do they really mean though in plain English? Are they always used correctly? Given the difference these terms can make when included in or left out of a contract, their meaning must be crystal clear to the parties, their lawyers and, of course, to the potential translators of the contract.

Subject to: The phrase “subject to” is used when an exception from a rule or provision contained in a different clause of the contract needs to be introduced.

• Clause 1 states that “Subject to clause 2, the buyer does not have the right to withdraw from the sale, if 15 days have passed after the signing of the contract”. Clause 2 provides that “The buyer has the right to withdraw from the sale whenever he discovers that a characteristic of the object of the sale is missing, which the parties have agreed as being essential”.
• Clause 1 states that “Subject to clause 2, the carrier is liable for any damage of the goods from the moment of receiving the shipment, until the shipment is promptly delivered to the recipient”. Clause 2 provides that “The carrier is not liable for any damage of the goods while they are being transferred to the recipient, if the damage was the direct result of force majeure”.

In the above examples clause 2 takes priority over clause 1 by introducing an exception of the rule contained in clause 1.

Another way to express the same thing in plain English would be to say “Except as set out in clause 2…”

Notwithstanding: “Notwithstanding” is in effect the opposite of “subject to”. Let’s re-write the above examples using “notwithstanding to”, instead of “subject to”.

• Clause 1 states that “The buyer does not have the right to withdraw from the sale, if 15 days have passed after the signing of the contract”. Clause 2 provides that “Notwithstanding clause 1, the buyer has the right to withdraw from the sale whenever he discovers that a characteristic of the object of the sale is missing, which the parties have agreed as being essential”.
• Clause 1 states that “The carrier is liable for any damage of the goods from the moment of receiving the shipment, until the shipment is promptly delivered to the recipient”. Clause 2 provides that “Notwithstanding clause 1, the carrier is not liable for any damage of the goods while they are being transferred to the recipient, if the damage was the direct result of force majeure”.

Notwithstanding sets out an exception from the rule contained in clause 1, when the conditions provided for in clause 2 have been met.

Another way to express the same thing in plain English would be to say “Despite clause 1…”

Sometimes the same term can be found in a contract, but formulated much more broadly. For example, when the person who drafts the contract does not have the time to mention the specific clause numbers, for which the exception is set, the expression can be found as “Notwithstanding any other provision in this agreement…”.  In this case the exception refers to the entire agreement.  This expression can be we-written in plain English as “Despite anything else to the contrary in this agreement…”.

Without prejudice to: “Without prejudice to” is used when no priority needs to be given over another clause of the contract.

• Clause 1 states that “Without prejudice to any other rights that the buyer may have according to the applicable law, the buyer has the right to withdraw from the sale within 15 days of the signing of the contract”. The buyer therefore, other than the right to withdraw from the contract, has all the other rights conferred upon him under the applicable law.
• Clause 1 states that “Without prejudice to any other liability of the carrier according to the applicable law, the carrier is liable for any damage of the goods from the moment of receiving the shipment, until the shipment is promptly delivered to the recipient”. The carrier therefore, other than being liable for any damage of the goods during the transfer, is also liable for all the other instances provided for under the applicable law.

Another way to express the same thing in plain English would be to say “Without affecting any other rights/liabilities according to the applicable law…”.

By Eva Angelopoulou