Yesterday, in this post, I addressed some of the virtues and vices of "notwithstanding." Here's a bit of Friday fun for you to highlight the problem that you can run into with competingnotwithstandings in a contract:

The Sublease

SUBLEASE

This Sublease, dated as of November 1, 2013, is made between Bert and Ernie.

Section 1.1. Ernie shall not annoy Bert.

...

Section 7.10. Notwithstanding anything to the contrary in this Sublease, Ernie is permitted to yell at Bert before 7 a.m. on Christmas morning if there are presents under the tree.

...

Section 12.3 Notwithstanding anything to the contrary in this Sublease, Ernie shall not converse with Bert before Bert has finished Bert's first cup of morning coffee.

...

The Scenario

It's 6 a.m. on Christmas morning. Ernie arises to find presents under the Christmas tree. Bert is drinking his first cup of morning joe in the kitchen. A dialogue ensues:

 

Ernie [yelling]: "Bert! Bert! There are presents under the tree! Come here, Bert! You've gotta see this!"

Bert [whining]: "Ernie, you know that you're not supposed to annoy me. It says so in our sublease."

Ernie [still yelling]: "But Bert: look at all those presents! And besides, Section 7.10 of our sublease says that I can yell at you in this circumstance, even if it's annoying."

Bert [getting mad]: "First of all, I'm surprised that you actually read the sublease. But I guess you didn't read the whole thing. Section 12.3 says that you can't talk to me before I've finished my first cup of morning coffee, notwithstanding anything to the contrary in the sublease. This is my first cup, and I'm not done, so put a lid on it!"

Ernie: "Gee, Bert: Section 7.10 says that, too. I'm allowed to yell aloud at you—that's a homophone, Bert—in this case, notwithstanding anything to the contrary in the sublease."

Bert: "Well this is just wonderful. Now we've got two conflicting provisions in the sublease. Who drafted this thing, anyway."

Ernie: "It was Elmo, Bert. He jointly represented us."

[Muted trumpet plays that "wah-wah" noise. Bert furrows uni-brow and pours a scotch.]

This article is presented for informational purposes only and is not intended to constitute legal advice.