The purpose of this series of articles is to explain the meaning of words which commonly appear in contracts and other documents written in legal English.
1. Provided that
This phrase appears frequently in contracts but can be quite difficult to understand because it has two distinct meanings.
First of all “provided that” is used to express a conditional sentence, for example in the following “term” clause from a distribution agreement:
“The Agreement is for an initial term of two years. It will be renewed for further successive periods of two years provided that the Distributor reaches the sales targets which are set out in Schedule 2.”
Here the phrase, “provided that” could be replaced by “if” or “on condition that”.
The second meaning of “provided that” refers to an exception to a main rule. Its use can be illustrated by the following “Place of Work” clause from an employment agreement.
“The Employee shall work four days a week in Brussels and one day a week in London provided that the Employer is entitled to require the Employee to work for seven consecutive Working Days in London by giving the Employee seven days’ prior written notice.”
In the above example, the phrase “provided that” means “but” in order to contrast the normal rule of one day a week in London with the right of the Company to extend the Employee’s work there. Apart from the lack of clarity, as most people associate “provided that” with “if”, the use of this phrase as an exception to a main rule means that the sentence becomes extremely long and difficult to read. It would be better to delete “provided that” and insert a full stop after the words “one day a week in London” so that there are two sentences.
In contracts, the word “deem” is used to create a kind of legal fiction, in other words to treat a thing as being something that it is not, for example in the following Notice” clause:
Any notice required or authorised to be given under this Agreement shall be in writing and sent to the Parties at the address as first stated in this Agreement and shall be deemed to have been made as follows:
- if personally delivered, at the time of delivery
- if posted by recorded delivery at the expiration of 48 hours or, in the case of air mail, 7 days after the envelope containing the notice is delivered into the custody of the postal authorities.
It is common knowledge that posted letters do not always reach their destination. However, paragraph (b) creates a legal fiction whereby if the sender is able to establish that he has sent the notice in the ways described in the clause, it will be assumed that the recipient received the notice regardless of whether this is in fact true.
The word “deem” often appears with “shall” which is invariably used as a verb of obligation in contracts. Because no obligation is being imposed in the sentence containing the words “shall be deemed”, it is better to replace “shall” with “will”.
Knowing how and when to correctly use common legal terms such as “provided that” or “deem” is necessary when writing a document in legal English. Undertaking a legal English course will help you to gain a better understanding of this specific terminology and allow you to acquire the necessary skills to write proficiently in legal English.