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‘‘Plain
Language’’ is a regular feature of the Michigan Bar Journal,
edited by Joseph Kimble for the Plain English Subcommittee of the
Publications and Website Advisory Committee. We seek to improve
the clarity of legal writing and the public opinion of lawyers by
eliminating legalese. Want to contribute a plain-English article?
Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038,
Lansing, MI 48901. For information about the Plain English Committee,
see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.
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Peter
Butt and Richard Castle, Modern Legal Drafting 125–26
(2001): ‘‘[Provisos] are typically introduced by formalistic
phrases such as provided that or provided however that.
No legal precision would be lost by replacing these phrases with simple
English words, like if or but or however....Where
the purpose is to introduce new material, the words introducing the
proviso...should be struck, and a new sentence begun.’’
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. Knowlegeable 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.’’
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