On 30 Dec 2003 12:00:01 -0800 Ken Berg <berg@tampabay.rr.com> whittled these words:
FLORIDA - I am negotiating an addendum to a Franchise Agreement and am
a bit confused. The first sentence of the addendum (as supplied by the
franchisor's lawyer) reads:
"Notwithstanding anything to the contrary in the Franchise Agreement,
the parties hereby agree as follows:"
I requested a modification to:
"The parties hereby agree to the following modifications to the
Franchise Agreement:"
which was rejected by the franchisor's lawyer. What I am confused
about is that the prupose of the addendum is to override language in
the Franchise Agreement. Yet, the wording they are proposing seems to
me to state that the Franchise Agreement supersedes that addendum. As
I wrong?
"Notwithstanding" means "regardless of" or "in spite of"
So:
"Regardless of anything to the contrary in the Franchise Agreement,
the parties hereby agree as follows:"
Which *ought* to be just a shade more precise than your wording. My
*guess* is that their language is a bit more explicit. It specifies that
the modifications are agreed to *even though* they may conflict with (be
contrary to) the Franchise Agreement. Your language in contrast, could
be read as to refer only to additional terms - it seems to omit resolving
a head on conflict between the main agreement and the addendum. Not that
*I* would read it that way, but a court very well might.
The shift over to "plain language" is a tough one because so much in law
is driven by language. The older language already has a body of law
interpeting its meaning, while the newer language does not. I'm behind
you on the plain language but I understand the discomfort level on the
otherside.
Diane Blackman
