As stated, provisos continue to be used in many modern legal documents even though there is no justification for them. They can only serve to obscure meaning. There are three main cases where
they continue to be used, and in each they could be avoided by using alternative (and clearer) words. These are:
(a) Provisos in definitions
Definitions often have provisos tacked onto them which are substantive provisions that ought to appear in the body of the document. This matter has already been referred to above, 4.4.5.
The example below, which is taken from the rules of a company pension scheme, illustrates the point:
‘Overseas Service’ means in relation to a Member:
(a) service in the employment of the Employers outside the UK; or (b) secondment by the Employers to service outside the UK either
with one of the Employers or otherwise on their behalf, PROVIDED THAT such service is specified to be for a period not exceeding 36 months or until the trustees have obtained the agreement of the Inland Revenue to the continued participation of the Member in the Scheme.
The material in the proviso is substantive and should have been included in the rule which dealt with the position of an employee in overseas service (which was extensive in the document from which this is taken).
(b) Provisos expressing exceptions or qualifications
An exception or qualification to a general principle is often indicated by ‘PROVIDED THAT’ or ‘PROVIDED ALWAYS THAT’. Exceptions should be preceded by the words ‘except that’ and conditions by ‘on condition that’.
In some instances, the use of paragraphing (referred to above, 3.4) may eliminate the need for provisos, so that the general principle is set out in one clause and the exception or qualification in another clause. The following clause, which is illustrated in three different drafting styles, gives a vendor the right to remove fixtures from a property sold and indicates how provisos can be avoided where exceptions or qualifications arise.
Traditional style with provisos
The Purchaser agrees with the Vendor to permit the Vendor to remove and take away at his own expense at any time prior to Completion the Adam marble mantelpieces situated in the drawing room and the dining room of the said Property PROVIDED THAT the Vendor at his own expense replaces the same with the mantelpieces to be provided by the Purchaser and makes good all damage occasioned by the removal and replacement of the same which may be caused to the plasterwork decorations other fixtures or otherwise to the fabric of the Property.
Quite apart from the removal of the proviso, the language of the clause could be simplified.
Modern English unparagraphed
The Buyer agrees with the Seller to permit the Seller to remove at any time prior to Completion the Adam marble mantelpieces in the drawing room and the dining room of the Property on condition that the Seller replaces them with the mantelpieces to be supplied by the Buyer and makes good all damage occasioned by the removal and replacement of the mantelpieces.
Modern English paragraphed
(1) Subject to paragraph (2) below the Buyer agrees with the Seller to permit the Seller to remove at any time prior to Completion the Adam marble mantelpieces in the drawing room and the dining room of the Property.
(2) The Seller shall,
(a) replace the Adam marble mantelpieces with mantelpieces to be supplied by the Buyer; and
(b) make good all damage caused by the removal and replacement of the mantelpieces.
A further example is a clause taken from a partnership agreement concerning the conduct of the partnership:
15 Conduct of partnership
Each partner covenants with the other partners to be bound by decisions of a majority of the partners PROVIDED THAT a decision of the partners affecting a change in the nature of the
partnership shall be unanimous and PROVIDED FURTHER THAT in the event of an equality of votes on a majority decision of the partners the Senior Partner shall have a casting vote.
This clause includes three separate matters which have been strung together with provisos, that is:
• that decisions of the partners are to be by majority vote;
• that a unanimous vote is required for a change of business; and
• the Senior Partner is to have a casting vote if there is a tie.
The clause does not make easy reading and the contents could be drafted without the provisos, especially if it were paragraphed:
15 Conduct of partnership
(1) Subject to sub-clauses (2) and (3) below each partner covenants with the other partners to be bound by decisions of a majority of the partners.
(2) A decision of the partners affecting a change in the nature of the partnership business shall be unanimous.
(3) If there is an equality of votes on a decision to be made by a majority of the partners the Senior Partner may exercise a casting vote.
(c) Separate clauses
Sometimes, provisos are used to weld together material that should be set in separate clauses. A basic rule is that each clause should deal with only one concept or thought (see above, 6.1.2). If two or more concepts are included in one clause, the clause should be split into two clauses. For example, a will may include a clause which contains both a disposition of property to be held on certain trusts and the administrative provisions relating to the trusts. The administrative provisions should be set out in a separate clause at the end of the will.
The following clause is from a contract for the sale of goods. It deals with acceptance of the goods by the buyer and has a
provision on liability for loss and expense caused by a breach thrown in at the end:
The Buyer shall not be deemed to have accepted the Goods or any part thereof until the Buyer has inspected the Goods and ascertained that they are in accordance with this agreement PROVIDED THAT the Buyer may reject the Goods or any part thereof which are not in accordance with the agreement within a reasonable time after such inspection PROVIDED ALWAYS THAT if the Buyer rejects the Goods or any part thereof the Seller agrees to accept the return of the Goods or part thereof and refund the Price to the Buyer PROVIDED FURTHER THAT the Seller shall be under no liability for any loss or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this agreement.
The material following the last proviso seems to have been thrust into this clause, even though it concerns different matters from those dealt with in the earlier part of the clause. The fact that it may have been relevant to certain events, for example, if the Seller should refuse to accept the return of the goods, is insufficient reason to incorporate it into the clause. It should be in a separate clause. The clause would also be much improved if it were drafted without provisos and if it were paragraphed.