The Double Life of Provided That

and a Legal Translator’s Key to Each

Ricardo Chiesa

onstructions with the innocent-looking phrase pro- sentence above, the listener/reader will produce some ID

C vided that are particularly common in legal English

texts. They are as frequent as they can be tricky,
and we will briefly discuss here why legal translators should
(i.e., the fulfillment of the condition is step 1) before being
allowed into the premises (step 2). The condition thus oper-
ates as a pre-requirement for something else to happen or not
be wary of them. Whether they occur in a contract, a stat- to happen. We will see later on why it is important to keep
ute, a set of bylaws, or an insurance policy, clauses headed this sequence of events in mind.
by provided that may largely depart from their customary In the world of law, the foregoing holds true in
meaning in general English. connection with both conditions precedent (or ‘prior’ con-
ditions) and conditions subsequent. Whether the condition
The conditional side of the coin precedes (‘precedent’) or follows (`subsequent’) the duty to
Grammar books usually describe provided that as a perform under a contract, it must always occur before the
subordinating conjunction or a complex subordinator (i.e., event or state of affairs that is contingent upon it. The same
one consisting of more than one word) used to introduce applies to the Civil Law devices known in Spanish-speaking
adverbial clauses of condition. With this function, provided countries as condición suspensiva and condición resoluto-
that can be regarded as synonymous with providing that ria, which, though not exactly the same in scope, have tradi-
(though this one is more informal and commoner in spoken tionally been considered fairly good cultural equivalents of
language) and also reduced to the simple form provided. condition precedent and condition subsequent, respectively,
In the sentence “You may enter the premises pro- and are transparent counterparts of the forms used, e.g., in
vided (that) you show some ID,” it is plain that entry into Louisiana, namely, suspensive condition and resolutory con-
the premises is conditional upon the production of some ID, dition. In the first case, the vesting of a right or the birth
such that the conjunction ‘if’ can easily be used instead; the of an obligation depends upon the occurrence of a future
whole sentence can be rephrased, though with shifting fo- event, whereas in the second, a right is forfeited or lost or
cus, as “unless you show…, you may not…”. In addition, an obligation is terminated or discharged if the future event
most conditional clauses are reversible, meaning that they occurs. Again, the event envisaged as future and uncertain
may be placed either in front position or in end position and signified in the conditional clause must occur first. In
(again, with a change in focus, of course). Grammar books other words, the time sequence is not altered by the effect or
wisely add that provided (that) is typically used when the impact (e.g., causing a right to be vested or lost) of the event
condition is imposed by the speaker/writer rather by exter- acting as a condition.
nal circumstances or third parties, and that other conditional
conjunctions (as long as, so long as, on condition that, in the The time factor
event that) are similarly subject to pragmatic and stylistic The proper identification of a condition in terms of
constraints, so they are not freely interchangeable in all con- factual sequence is crucial for the distinction between the
texts. two meanings of provided (that) we will discuss below.
Before we discuss the different meanings of pro- Consider this sentence from a loan agreement: “All
vided (that), some observations are in order regarding the payments of interest shall be made on the last day of each
temporal sequence of events in conditional scenarios. From month, provided that such day is a Banking Day in London
a sequential viewpoint, the existence of a factual condition as defined above.” Here, provided that clearly functions as
entails that something must exist, be done or happen before a conditional conjunction, introducing a condition precedent
something else exists, is done or happens. In the example to the obligation to make payment on a particular day. Natu-

Intercambios 11
rally, provision is made later on in the contract for an alterna- Here, the first clause lays down a general rule or
tive day on which to make payment should the condition fail principle, while provided that introduces a clause signifying
to obtain. The agreement provides elsewhere that “Lenders a limitation on the scope or extent of such rule. It follows
may waive their right to collect interest on the last payment that there is no condition expressed in the second clause, as
of principal under tranche C provided that Borrower has the fact that the bonus may not exceed a certain percentage
made timely payment of all other amounts owed as principal is in no way a condition for the existence of the Board’s
and interest hereunder.” Again, provided that introduces a right (or duty) to establish such bonus. Proof of this is that
condition, the prior occurrence of which is patent from the provided that cannot be replaced by ‘if’ and that the second
perfective aspect of the verbal form (has made). clause cannot be placed in front position without the entire
It is interesting to note that the tense used in the con- sentence becoming nonsensical.
ditional clause in English is always a form of the present As for the sequence of events, there is nothing that
(simple, progressive, perfect), with modal verbs like ‘may’ must occur or exist before the event described in the first
being also possible, as well as the past tense form. In con- clause (i.e., determining the bonus amount). The 18% limit
trast, the future tense would obviously be considered incor- is something the Board must bear in mind upon determining
rect. Let us add that the Plain English Movement has been such amount, but its right (or duty) to establish it pre-exists
quite (though not entirely) successful in sweeping away (or, at best, is concurrent with) the limitation to which this act
forms like “provided that such day shall be a Banking Day” is subject, not the other way around. Therefore, the step-1-2
or “provided that Borrower shall have made timely pay- sequence mentioned above for conditional sentences does
ment…,” in which the use of ‘shall’ is a distinctive marker not hold here. Moreover, the future tense could perfectly be
of legalese and thoroughly unjustified from a grammatical used in the second clause (‘will not exceed’), and so may the
point of view. modal verb ‘shall’, as the customary vehicle to express an
In the exam- obligation or a prohi-
ples above, provided bition in legal English
that could be trans- The proper identification of a condition in (‘shall not exceed’).
lated into Spanish as The use of pro-
‘siempre que’, ‘en terms of factual sequence is crucial for the vided that in the sense
tanto (y en cuanto)’,
‘con la condición de
distinction between the two meanings... described above be-
longs in the family
que’, or simply ‘si’. of adversative, rather
It should also be re- than conditional,
membered that the translation into Spanish of conditional conjunctions. To put it simply, provided that could readily
clauses of this type introduced by conjunctions other than be replaced by ‘but’ in the sentence above, with no loss of
‘si’ requires the use of the present tense in the subjunctive meaning. It may also be regarded as a concessive device,
mood (“siempre que ese día sea un Día Hábil Bancario…”; such that the second clause can be substituted with a new
“en tanto y en cuanto el Prestatario haya abonado puntual- sentence beginning with ‘however’ or with any of the boil-
mente…”). erplate phrases that lawyers are so enthusiastic about (like
‘without prejudice to the foregoing’, for example).
Legal translator, beware Clauses containing provided that as an adversative
Clear as the meaning of provided (that) may be in or concessive connector are commonly known as provisos.
the sentences above, we should bear in mind that this con- Legal dictionaries offer various descriptions and definitions
junction can have chameleonic properties in legal English. for the term proviso, and use terms like ‘limitation’, ‘restric-
Let us see this case: tion’, ‘restraint’, ‘exception’, ‘reservation’, ‘qualification’,
“The amount of the performance bonus payable to ‘modification’, ‘stipulation’ or the verbal forms correspond-
each manager shall be determined by the Board of Direc- ing to these nouns to explain its meaning. Many dictionaries
tors, provided that such bonus may not exceed 18% of the also include the term ‘condition’, clearly because the refer-
manager’s total annual compensation.” ence to provided that with the meaning first discussed in this
Intercambios 12
article is inevitable, but they all fail to establish criteria to drá introducir modificaciones en el Plan de Distribución
distinguish when provided that introduces a true condition en cualquier momento, *siempre que esas modificaciones
and when a restriction or exception. cuenten con la expresa aprobación por escrito del Prov-
When used with this latter meaning, provided that eedor,” we would render the distributor unable to make any
comes in different formats, and sometimes even defies punc- amendments, as he would have to wait for approval to take
tuation rules. Here are possible occurrences for the same place…of amendments he has not had the chance to make!
text (please note that there is no intention to pass judgment In other words, we would be entering a vicious circle. It may
on correctness, but rather to adopt a merely descriptive ap- be read between the lines that the supplier’s approval may be
proach, based on long-time observation of these clauses in required for the amendments to become effective, but not for
various kinds of legal texts): the distributor to enforce its right to introduce them.
• Distributor may introduce amendments to the Distribution The Spanish mistranslation of the following sen-
Plan at any time; provided, any such amendments shall be tence drives us into a similar dead-end:
expressly approved by the Supplier in writing. • Source: “Confidential information shall only be disclosed
• Distributor may introduce amendments to the Distribu- to comply with applicable law; provided that each party
tion Plan at any time, provided that any such amendments shall, to the extent permissible under such law, use its best
shall be expressly approved by the Supplier in writing. efforts to prevent third parties from gaining access there-
• Distributor may introduce amendments to the Distribution to.”
Plan at any time, provided, however, that any such amend- • Target: “La información confidencial deberá revelarse
ments shall be expressly approved by the Supplier in writ- para dar cumplimiento a lo exigido por la legislación
ing. aplicable, *siempre que cada una de las partes procure,
• Distributor may introduce amendments to
the Distribution Plan at any time, provided
always that any such amendments shall be
expressly approved by the Supplier in writ-
Misinterpreting a restriction as a
ing. condition can lead to serious translation
• Distributor may introduce amendments to
the Distribution Plan at any time. Provided, errors in legal texts.
that any such amendments shall be express-
ly approved by the Supplier in writing.
When the restriction or exception is perceived por todos los medios a su alcance y en la medida de lo
as particularly significant, it is common to use any of the permitido por dicha legislación, impedir que terceros ac-
forms above in block capitals (e.g., PROVIDED ALWAYS cedan a dicha información.”
THAT…), even after a sentence or paragraph break, or the The translation of this proviso as a condition entails
underlined, italicized, and/or boldfaced forms of the connec- a contradiction, as the absolute duty to disclose in order to
tor (provided, provided, provided). These graphic conven- comply with the law is made contingent on the parties’ prior
tions are useful to identify this specific restrictive meaning or simultaneous efforts to do the opposite, i.e., to prevent
and to distinguish it from a condition. The clauses contain- disclosure. Rather, the proviso should be interpreted as a
ing ‘however’ and ‘always’ are much more transparent as to ‘limitation’ intended to mitigate the harshness of the rule
their adversative or concessive import, and help us realize in the first clause, as can be seen from the apposite use of
that these clauses may be read as an ellipsis of a sentence the phrase “to the extent permissible under such law”; this
beginning “It is hereby provided, however, that…”. phrase suggests that some exception to the duty of disclosure
may be found. Therefore, a correct translation could be “no
The dangers of misinterpretation obstante ello, cada una de las partes se obliga a procurar /
Misinterpreting a restriction as a condition can lead procurará…”.
to serious translation errors in legal texts. If the sentence Whenever we encounter this use of provided (that),
above were translated to Spanish as “El Distribuidor po- we may render it in Spanish by using connectors like ‘pero’,
Intercambios 13
‘con la salvedad de que’, ‘sin embargo’, ‘no obstante’, ‘sin provided that) and the general meaning of the provision in
perjuicio de lo antedicho’, etc. (in each case, in accordance English make clear that the possibility of excluding fines,
with the length of the preceding clause and with any appro- penalties, etc. is an exception to the rule of “no exclusions or
priate punctuation adjustments). The phrase ‘en el bien en- limitations” set forth in the long preceding clause. It is not,
tendido de que’ is particularly widespread with this meaning as the Spanish version suggests (“siempre que … pueda”), a

English Spanish
27. The insurance and the credit institutions’ insurance fra- 27. La aseguradora y el marco asegurador de las entidades de
mework shall meet the following conditions: (…) (c) the in- crédito deberán cumplir las siguientes condiciones: (…) (c) La
surance policy has no exclusions or limitations triggered by póliza de seguro no contendrá exclusiones ni limitaciones que
supervisory actions or, in the case of a failed credit institution, dependan de medidas de supervisión o que, en el caso de una
that preclude the credit institution receiver or liquidator, from entidad de crédito en quiebra, impidan a la entidad de crédito,
recovering for damages suffered or expenses incurred by the al administrador o al liquidador recuperar daños y perjuicios
credit institution, except in respect of events occurring after the sufridos o gastos incurridos por la entidad de crédito, excepto
initiation of receivership or liquidation proceedings in respect en el caso de eventos que ocurran una vez iniciada la recupera-
of the credit institution; provided that the insurance policy may ción concursal o liquidación de la entidad de crédito, siempre
exclude any fine, penalty, or punitive damages resulting from que la póliza de seguro pueda excluir cualquier multa, sanción
actions by the competent authorities. (Emphasis added.) o daños punitivos derivados de la acción de las autoridades
competentes. (Emphasis added.)

in Spain. As for the tense of the main verb in the clause con- condition to which the rule is subject for validity. Accord-
taining the proviso, it may be present or future, but always in ingly, a correct Spanish translation of the proviso could be
the indicative mood (unlike conditional clauses of the type “(…); sin perjuicio de ello, la póliza de seguro podrá ex-
discussed above and introduced by a conjunction other than cluir…”.
‘si’, which require the subjunctive). The example cited above is in no way an indictment;
Conversely, when going from Spanish to English, rather, it is meant to raise the issue that we legal translators
constructions with provided that and its garden varieties sometimes need to translate excerpts from EC and other in-
may come in handy to translate certain Spanish construc- ternational materials that already exist as official versions in
tions with ‘sin que’, as in the example below: many languages. And the question remains: shall we go with
• Source: “Los accionistas reunidos en una junta extraor- the official version, even if flawed, or provide a new one
dinaria podrán decidir asuntos de especial urgencia, sin we consider more accurate or appropriate? But then, Kipling
que los titulares de acciones preferentes puedan votar so- dixit, that is another story.
bre la disolución o fusión de la Sociedad.”
• Target: “The shareholders coming together at a special
meeting may decide (on) particularly urgent matters, pro- 1
The English and Spanish versions may be viewed at
vided, however, that preferred stockholders may not vote http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_177/l_
17720060630en00010200.pdf and http://eur-lex.europa.eu/LexUriServ/
/ shall not vote / shall not be entitled to vote on the dis-
LexUriServ.do?uri=OJ:L:2006:177:0001:0200:ES:PDF, respectively.
solution or merger of the Company.”
Finally, and by way of illustration, let us say that the
error of interpreting limitations or exceptions as conditions Ricardo Chiesa is a certified
has already slipped into some of the multilingual materials English<>Spanish translator and attor-
produced in the European Union. The following paragraphs ney-at-law. Since 1986, he has worked as
a freelance translator specializing in law,
have been taken from the English and Spanish versions of
business and corporate management. For
Directive 2006/48/EC, of the European Parliament and of the past twenty years, he has lectured
the Council, relating to the taking up and pursuit of the busi- widely on legal and general translation
ness of credit institutions (Annex 10, Article 27(c)):1 in Argentina, Peru, Finland, the United
Both the punctuation used (a semi-colon before Kingdom and the U.S.

Intercambios 14