Comments on: “Provided That” http://www.adamsdrafting.com/2008/08/23/provided-that/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: Ken Adams http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-60148 Ken Adams Thu, 28 Aug 2008 20:11:24 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-60148 Art: If you "tie one provision to the other," it doesn't follow that one provision is necessarily a condition to the other. See <em>MSCD</em> for examples of different sorts of relationships using some variation on <em>provided that</em>. Ken Art: If you “tie one provision to the other,” it doesn’t follow that one provision is necessarily a condition to the other. See MSCD for examples of different sorts of relationships using some variation on provided that. Ken

]]> By: Art Markham http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-60132 Art Markham Thu, 28 Aug 2008 17:52:32 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-60132 Michael - you're probably right, but surely they would be unwise to do so? This judgement rests on the court's finding of fact regarding what the phrase meant in this context. It is persuasive rather than binding and, in different circumstances with different arguments, another court could hold differently. The lower court did exactly that. That said, I think that if you use "provided that" to connect one provision with another and expect it NOT to be interpreted as a condition, then you are walking into trouble. If it is not to tie one provision to the other, what is it actually for? Michael – you’re probably right, but surely they would be unwise to do so? This judgement rests on the court’s finding of fact regarding what the phrase meant in this context. It is persuasive rather than binding and, in different circumstances with different arguments, another court could hold differently. The lower court did exactly that.

That said, I think that if you use “provided that” to connect one provision with another and expect it NOT to be interpreted as a condition, then you are walking into trouble. If it is not to tie one provision to the other, what is it actually for?

]]> By: Michael Fleming http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-59884 Michael Fleming Tue, 26 Aug 2008 16:59:10 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-59884 "My advice is that you not use provided that in any of its variant forms." Good luck with giving that advice -- Now that we've got the Federal Circuit telling us that "provided that" has this particular meaning in this particular context, many of us will be faced with partners and colleagues claiming that to use any phrase other than 'provided that' is tantamount to malpractice. “My advice is that you not use provided that in any of its variant forms.”

Good luck with giving that advice — Now that we’ve got the Federal Circuit telling us that “provided that” has this particular meaning in this particular context, many of us will be faced with partners and colleagues claiming that to use any phrase other than ‘provided that’ is tantamount to malpractice.

]]> By: Chris Lemens http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-59742 Chris Lemens Mon, 25 Aug 2008 18:54:24 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-59742 Other alternatives to using "provided that" to express a condition are "if" and "so long as." (You can put but, only, or but only in from of either of them for emphasis or flow.) Note that the connotations of "if" and "so long as" are different. I'd ideally use "if" for a one-time condition and "so long as" for a continuing one. The difference is just a side benefit of not using "provided that." Here, I think I'd probably use some version of "so long as" (because I do think it was probably a continuing condition that the drafters wanted). Other alternatives to using “provided that” to express a condition are “if” and “so long as.” (You can put but, only, or but only in from of either of them for emphasis or flow.)

Note that the connotations of “if” and “so long as” are different. I’d ideally use “if” for a one-time condition and “so long as” for a continuing one. The difference is just a side benefit of not using “provided that.”

Here, I think I’d probably use some version of “so long as” (because I do think it was probably a continuing condition that the drafters wanted).

]]> By: Ken Adams http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-59721 Ken Adams Mon, 25 Aug 2008 13:01:22 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-59721 Bryan: Sensible question! Assuming that the drafter did in fact want to express a condition, I'd say "on condition that," or I'd start a new sentence with "It is a condition to ... that ...." Ken Bryan: Sensible question! Assuming that the drafter did in fact want to express a condition, I’d say “on condition that,” or I’d start a new sentence with “It is a condition to … that ….” Ken

]]> By: Bryan Sims http://www.adamsdrafting.com/2008/08/23/provided-that/comment-page-1/#comment-59562 Bryan Sims Sun, 24 Aug 2008 13:52:47 +0000 http://www.adamsdrafting.com/2008/08/23/provided-that/#comment-59562 So how would you phrase this? So how would you phrase this?

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