The last time I had anything to say about provided that on this blog was in this 2008 post. Well, today I was woken from my provided that slumber by this post, entitled “Provisos in Contracts,” on the Paper Software blog.
Paper Software is developer of Turner, a Mac-only software with the tagline “Smarter, simpler contract drafting tools.” The guy behind Turner’s design is Ben Whetsell (@benwhetsell), and it’s Ben who wrote the post on provisos.
Ben’s post prompted me to send out the following fanboy tweet:
Excuse me if I use a World-Cup-commentator metaphor, but in his analytical writings, @benwhetsell is a beast. And that's a good thing.
— Ken Adams (@AdamsDrafting) July 9, 2014
I tweeted that because Ben’s post exhibited qualities that I’ve seen in other stuff he’s written: sharp presentation, serious attention to detail, thorough research, and a broad perspective. It’s the sort of stuff that encourages me to up my own game.
Now let’s consider Ben’s conclusions.
He says—and I’m paraphrasing—that if provided that is ambiguous in a particular context, you shouldn’t use it, and that if you want to avoid legalisms, you shouldn’t use it, but that it’s not otherwise a problem, and you should feel free to use it or not, as you see fit.
Ben includes me in the camp that objects to provisos because they’re archaic. Ben says that “Instead of offering reasons to avoid provisos, these statements play on the desire to be on the cutting edge.” But that doesn’t apply to what I’ve said on the subject. (Cue buzzer sound effect.) MSCD doesn’t suggest that provided that by itself is archaic. Instead, it points to “the archaic trappings of the traditional proviso,” namely the funky underlining, the semi-colon, the extraneous however, and the way that two or more provisos are tacked on to a provision like carriages being pulled by a locomotive (usually with further being added to the formula for the second proviso). If something is gratuitously old-fashioned, that’s reason enough to get rid of it.
Regarding the argument that provisos encourage overlong sentences, Ben says that it’s a straw man, because you can create overlong sentences without provided that. But because provisos are traditionally treated as modules to be bolted on to the back of a sentence, they’re particularly conducive to overlong sentences. Eliminating traditional provisos might reduce the temptation to create overlong sentences.
Ben then tackles another objection to provided that. He quotes various commentators, including the following snippet from MSCD: “In other words, using provided that is an imprecise way to signal the relationship between two conjoined contract provisions.” Ben describes this as a “fallacy,” because generally no ambiguity results—the meaning of provisos is generally evident from the proviso, even though it’s always introduced by provided that.
But even if you assume that provided that doesn’t result in ambiguity, using provided that to introduce different kinds of meaning makes readers work harder. It would simplify matters if drafters were to use different signals to introduce whatever follows.
In a related argument, Ben says, regarding cases cited by commentators to show that provided that has different meanings, that “in most of the cited cases, language that contains provided that is held to be unambiguous.” But I don’t care whether a court ultimately decided that a given proviso was unambiguous. That’s because I don’t want to win fights! The fact that contract parties have demonstrated a propensity to fight over provided that and its variants is enough to make me wary of them.
He goes on to say the following:
If the phrase provided that caused problems with any degree of frequency, it seems that I should be tripping over cases, but finding a single case within the last six months in which provided that caused a problem appears to be an impossibility. It seems that however ambiguous provided that might be in theory, in practice it’s used unambiguously (or at least not so ambiguously that the parties end up suing each other).
But I’m not interested in playing the odds. If a usage is suboptimal and I have clearer alternatives, I’ll go with the alternatives.
So I disagree with Ben on all counts: First, the traditional trappings that often accompany provisos are archaic. Second, provisos are conducive to overlong sentences. Third, use of provided that to introduce different kinds of meaning makes readers work harder. And fourth, people fight over provided that. The fix for those problems is to use something other than provided that and its variants.
By the way, having Ben suggest that, among other things, I’m promoting a fallacy is a trivial price to pay for having someone challenge my writings in a detailed way. I don’t get enough of that. I agree with Ben that one sees a lot of bluster in drafting commentary, and I could do with having more people like Ben around to keep me on my toes.