Eliminate using provisos in statutory drafting.

A proviso contains the words

"provided that", "provided, however, that", or "provided further, that" before a sentence or clause,
usually to state an exception to the preceding sentence or clause. In the past this office has used
provisos to make exceptions. The present practice in bill drafting is to avoid using provisos
altogether. The proviso originally was used in conveying real property and was a reservation on the
grant - the sole purpose of the reservation being to defeat the Grant upon the happening of a
condition subsequent. In statutory drafting, provisos have most often been used to make exceptions
to preceding provisions and are sometimes improperly used to present extraneous ideas not
connected with a preceding provision. In legislation, a simple exception to a preceding provision
can be made by the use of such words as "but", "except that", "if", or "so long as". If a provision is
subject to numerous exceptions or conditions, place those exceptions or conditions in a separate
section or subsection for clarity.

"Provided that", "providing", "provided however"

Provided that, providing, and provided however pop up in so many documents that they must be
really precise legal words having well understood meanings. Right?

Wrong. They are sloppy, antiquated, imprecise and sometimes ambiguous words. The origins of
provided that go back to the 13th century when the words provided that meant it is provided that
this is our agreement or it is provided that this is the law.(6) Nowadays, the words are used variously
to mean

• an exception

• a condition, or

• just another provision of the legal document.

Here is an example of two different uses of providing in one clause:

An employee . . . shall, upon her written request providing at least 2 weeks advance notice,
be granted maternity leave . . . providing however that if . . . her ability to carry out her
normal work assignments becomes limited . . .

The first providing is used as a condition on the employee obtaining maternity leave. The providing
however looks like it is an exception. In fact it is quite a separate matter because it permits the
employer, unilaterally, to place the employee on maternity leave in certain circumstances – it has
nothing to do with the employee’s right to maternity leave. The first 3 lines could be rewritten along
these lines:

. . . the Employer must grant a pregnant employee maternity leave if she gives the
Employer at least 2 weeks written notice . . .

Here is another provided that example

 Provided that the efficiency of . . . shall not in any way be disrupted . . . time off work
without pay may be granted . . . for the following purposes . . .

This Provided that is used as a condition. It can be replaced with "If".

If a document does not make clear which meaning a provided that, provided however, or providing
has, a dispute can lead to litigation.

The guiding rule is: Don't use "provided that" or "provided however" - use instead "except . . .",
"if", or "but". Use "providing" with caution, but not as a condition or exception.

Provisos

‘Provisos’ have a long legislative history. For centuries in England, the term provided or
provided that was used to introduce substantive provisions in legislation, as a contraction
of the enacting formula it is provided [that]. This use has long ceased, but the term
provided or provided that has survived, unique to legal writing. It has degenerated to a
'legal incantation... al all-purpose conjunction, invented by lawyers but not known to or
understood by grammarians'.
Properly used in modern legal drafting, provisos serve the useful purpose of limiting or
qualifying what has gone before. In practice, however, they are typically introduced by
formalistic phrases such as provided that, or provided however that. No legal precisions
would be lost by replacing these phrases with simple English words, like if or but or
however.

To illustrate, a will might say:

I give my property to my children provided that they marry.

The drafter could dispense with provided that and use if or when. Indeed, it would be
better to do so. As the will stands, it is unclear whether the proviso introduces a condition
precedent or a condition subsequent; that it, it is unclear whether the gift is initially
contingent, with marriage being a condition precedent to vesting, or initially vested but
subject to divesting in the case of children who do not marry. An alert drafter could have
used if to introduce a contingent gift; or could have used to be paid over when to introduce
a vested gift (‘to be paid over to them when they marry’).

This is not to deny that a true proviso has its place. But in practice the technique is often
abused. Rather than qualify or limit the width of what has gone before, the self-styled
‘proviso’ in fact introduces material of equal force; it adds a parallel provision, inserting
material that should have been drafted as a stand-alone clause. At best, this can cause
difficulty or comprehension, for the reader is uncertain whether to assume that the proviso
is intended to limit the preceding covenant (its proper function) or to introduce a separate
covenant; at worst, it can lead to litigation. Where the purpose is to introduce new material,
the words introducing the proviso – provided that or provided however that – should be
struck out, and a new sentence begun.
Provisos are frequently a product of the negotiation process. The document is drafted by
A, the lawyer for one side in the transaction. The other side's lawyer, B, needs to make a
substantive amendment but does not want to renumber all the existing clauses. So B
inserts a proviso, which by its nature is tacked onto an existing clause. A feels constrained
by professional comity to leave the amendment as a proviso. Hence the proviso slips in
when, by all the principles enunciated here, it should be put somewhere else.

To illustrate the points just discussed, consider the following clause from a lease of
property in an earthquake zone:

The tenant must repaint the premises provided that if there has been an earthquake the
tenant must repair any structural damage.

Here the drafter has used the technique of proviso, not to qualify what has gone before,
but to introduce an entirely new obligation. It would be better to delete the proviso and
divide the clause into two independent parts:

1. The tenant must repaint the premises.

2. If there is an earthquake, the tenant must repair any structural damage.

Again, consider the following provision:

All fixtures installed during the term of the lease by the tenant become the property of the
landlord upon the expiry of the term PROVIDED THAT the tenant may remove its fixtures
at the end of the term.

The meaning, or the purpose, of this clause is almost impossible to discern. The first half
(up to the proviso) seems merely to reflect the common law assumption that fixtures which
a tenant affixes to the property are the landlord’s property unless and until the tenant
removes them, and that a tenant who wishes to do so must remove them before the lease
expires, otherwise they remain the landlord's property. The second half (the proviso)
seems to give the tenant an unfettered right to remove fixtures at the end of the term: but
this also merely reflects the common law right of tenants to remove their fixtures at of
before the end of the lease. Probably, the drafter intended the proviso – despite being
cast as a proviso – to be the main head of the tenant’s right, and the opening words to limit
the time in which the tenant could exercise that right. If so, it would have been much
better to avoid the use of a proviso altogether, and reverse the order of provisions, thus:

1. The tenant may remove its fixtures at the end of the term.
2. Any fixtures not so removed remain the landlord's property.

Conclusion

This chapter has highlighted some of the practices which modern drafters should shun. All
the practices considered in the preceding pages have been developed and sustained over
many generations, even centuries; they are stocked in plentiful supply in the arsenal of
traditional legal drafters. But all are practices which non-lawyers find disconcerting, and
which therefore hinder comprehension. They can be discarded without threat to precision
or legal effect.
Robert C. Dick, Legal Drafting in Plain Language 96 (3d ed. 1995): ‘‘The
proviso is a relic [that] usually succeeds in lengthening a clause or
paragraph and creating obscurity. Many legal documents still contain an
incomprehensible mishmash of provisos.’’

Reed Dickerson, The Fundamentals of Legal Drafting 128 (2d ed. 1986):
‘‘Provisos have been used for so many purposes (to state conditions or
exceptions, or simply to add material) that they tend to be ambiguous.
At best they constitute archaic legalisms. Accordingly, provisos should
be avoided.’’

Bryan A. Garner, A Dictionary of Modern Legal Usage 710 (2d ed. 1995):
‘‘Writers on drafting have long cautioned drafters not to use provisos. In
fact, the words provided that are a reliable signal that the draft is not
going well. The problem—recognized five centuries ago by Coke—is that
the phrase means too many different things: provided that may create
an exception, a limitation, a condition, or a mere addition.’’

Thomas R. Haggard, Legal Drafting in a Nutshell 279 (2d ed. 2003):

‘‘[P]rovided that . . . defies grammatical analysis. Provisos produce
single sentences that are often hundreds of words long. Knowledgeable
drafters have railed against them for years. Apart from
being a grammatical abomination, provided that is ambiguous . . . .’’

David Mellinkoff, Mellinkoff ’s Dictionary of American Legal Usage 520

(1992): ‘‘[The proviso] is one of the horrors of legal writing, in a class
with notwithstanding.’’

G.C. Thornton, Legislative Drafting 80, 81 (4th ed. 1996): ‘‘On both
historical and grammatical grounds the proviso stands condemned. . .
.The case against the proviso is established beyond reasonable doubt by
the ambiguity and uncertainty of the phrase.’’