Plain Language

Down with Provided That


by Joseph Kimble
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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.

References

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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