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What is a Proviso?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 09 November 2016
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    Conjecture Corporation
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A proviso is a statement in a legal document used to discuss specific conditions and actions that may need to be taken or avoided. Such clauses often begin “provided that” or “subject to provision,” flagging the clause as a proviso so people reading the contract understand its importance. Provisos are structured into a variety of types of contracts and they should be reviewed carefully so people understand where, when, and how they will act on the terms of the document.

The proviso can be a restriction, such as a warning that employment with a company is contingent on not disclosing company secrets. It can also be a condition or qualification of some kind on the terms of the document. A similar concept is the exception, a clause noting circumstances and individuals excepted from the terms, except that a proviso explicitly spells out the opposite, making sure terms are in force in specific situations. Rejection of the proviso requires rejecting the whole document.

If people find that a proviso compromises their willingness to accept the terms of a document, they may be able to request that it be rewritten. There could be a problem with phrasing rendering the document confusing or unclear or a document could contain a clause with stipulations that were not discussed during negotiations. Discussing the concerns before signing the document gives people an opportunity to lodge objections and resolve the matter.

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Violating a proviso by doing or not doing something constitutes a violation of the contract as a whole. The other parties to the document can take legal action, including actions discussed in the contract such as terminating a relationship, as well as going to court to collect damages, if the action or inaction resulted in damages. Retaining an attorney familiar with contract law is advisable for situations like this to make sure adequate representation is provided.

People entering into contracts can also request provisos if they feel this is necessary while negotiating with the other party. The parties can discuss the conditions they want to apply to the contract and can work with an attorney to develop appropriate wording. It is important to be aware that people cannot insert illegal clauses into a contract, as this may render the contract void and unenforceable. The old fairytale proviso of agreeing to hand over the first born child in exchange for a service, for example, wouldn't hold up in court.

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