Comments to my recent post on granting language in a license alluded to the case of Jacobsen v. Katzer (Fed. Cir., Aug. 13, 2008). I’d like to pick up on something mentioned by commenter Chris—the court’s discussion of provided that.
This case involved the language of an “open source” copyright license. The license granted users the right to use the software in question, “provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following: ….”
The defendants didn’t take any of the actions specified in the provided that language, so the licensor sued. The question was whether that failure meant that the defendants’ use of the software fell outside the scope of the license or whether it represented breach of the license. In other words, we’re faced with the age-old distinction between conditions and obligations (see MSCD 2.181): did the provided that language state conditions to validity of the license or did it state obligations forming part of the license?
The lower court held that the provided that language didn’t limit the license grant. The Federal Circuit disagreed, holding that the provided that language stated conditions to effectiveness of the license. It noted that the license “uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted ‘provided that’ the conditions are met,” and it went on to note that “Under California contract law, ‘provided that’ typically denotes a condition.”
In MSCD 12.279 I note that provided is a conjunction meaning if or on condition that—”I’ll let you go to the party, provided you take a taxi home.” That’s the everyday use of provided and provided that.
But in drafting, provided that is also used as a truncation of the “term of enactment” it is provided that. Into the nineteenth century, provided that was used to introduce statutory provisions. And in contacts, it continues to serve that introductory function, although drafters mostly use provided however, that, preceded by a semicolon. It’s used to introduce not only conditions, but also limitations and exceptions, as well as unrelated provisions. It’s become a lazy way to tack on extra language in the course of negotiations.
So in saying that under California law provided that typically denotes a condition, the Jacobsen court made a murky issue seem clearer than it actually is, although of course one could drive a truck through “typically.”
So what kind of provided that is on display in Jacobsen? I agree with the Federal Circuit that it’s best read as a condition. That’s because the language in question doesn’t contain anything to suggest that in this context provided that conveys anything other than its meaning in everyday usage.
Of course, it would be best not to have to litigate this issue. My advice is that you not use provided that in any of its variant forms.
7 thoughts on ““Provided That””
So how would you phrase this?
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
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).
“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.
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?
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
The words “provided however that” are equivalent to the word “unless”. The form “provided however that” is an exception (do/unless/then) not a conditional (if/then). Exceptions are distinguished from conditionals by the presence of a default action (the “do” part). An exception cancels the default action, possibly substituting it for another action. The Federal Court, while correct in the outcome, has referred to these “provided however” exception clauses as “conditions” of the license, thus muddying the water. The distinction they are making is between contractual conditions and obligations, not logical conditionals and exceptions – a very important caveat.
Logical conditionals must evaluate as true in order for the associated _conditional_ action to apply. By contrast, logical exceptions must all evaluate as false in order for a _default_ action to apply.
Exceptions are an important logical tool, and if they didn’t already exist someone would need to invent them. Exceptions are common in computer programming (try/catch/finally), as are the conditionals (if/then/else, while/do, do/until, etc.).
In legal contracts, exceptions (ie. “unless”) impose a logical rigour, encapsulation, and clarity that cannot be achieved using conditionals. However, they are often (and disastrously) mistaken for conditionals, and which can give them the exact opposite effect if the first exception is triggered, because the reader thinks there is no need to further examine the remaining exceptions. On the contrary, all exceptions must be tested in order and only the last triggered exception is valid. In these situations the drafter of the contract will often be accused of having made a “mistake’, whereas in fact the contract wording is completely unambiguous. It is the reader who is in error.
In the case in point, there are a series of cascading (well only 2 in fact) exceptions. This is a typical construct in legal exceptions – each exception applies to the one preceding it and order matters. In computer science, cascading exceptions are rare (a feature of artificial intelligence) and exceptions are typically non cascading because they can all treated as exceptions to the default action, rather than to each other.
In order to understand whether the forms of “providing that” are conditions or obligations it is necessary to correctly understand the underlying mathematical rigour of “if/then” and “do/unless”. Once you can be clear about the correctness or otherwise of the type of logical construct involved, then this will also clarify what is/was intended.