Second Language Legal English
The word provide has an easily understood meaning in everyday English. In its first sense as a verb, it means to give, supply or make available.
The government provides free health care for people over 60
He provided uniforms for each member of the soccer team
Curtains provide privacy to occupiers of the house.
In another sense, the verb provide can also be used to make a requirement, or that something will or must happen.
The US Constitution provides that its state legislature has two bodies: the House of Representatives and the Senate.
These are two verb forms. Provided is also used as a word linking two phrases, often setting up a condition (also known as a proviso)
you can go to the cinema, provided you have finished your homework.
you can leave the shop through the side door provided you have paid for your items.
Instead of saying provided you can use the simpler and more direct word "if": you can go to the cinema if you have finished your homework.
Lawyers use provide and provided in each of these ways too, but the way we do can be improved - and sometimes its use should be avoided.
A good use by lawyers
We routinely refer to a legal authority or a precedent, such as a statute or a leading case, when writing to clients or drafting court pleadings, and that is when we can properly use provide.
The case of Dobbs v. Jackson Women’s Health Organization (2022) provides that there is no constitutional right to an abortion.
Section 1 of the Theft Act 1968 provides that there must be an element of dishonesty for stealing to be a criminal offence.
Your employment contract at clause 5.1 provides that all the work you produce as an employee belongs to the company that employs you.
The item referred to in each example above is a definitive statement or a binding authority or something that must be acknowledged and complied with, and has legal force such as a statute, a leading case, a contract or a constitution. It provides in the sense that it requires compliance.
The present continuous tense (provides) is used because it continues to be binding for as long as it is in force. If the statute is repealed, or the case is overturned, or the contract comes to an end, we would use the past tense:
The case of Roe v Wade (1973) provided that there was a constitutional right to an abortion until it was overturned in 2022 by the case of Dobbs.
The noun version of provide is provision, and a provision is any part of a document that ‘provides for’ something. So, provision can mean a clause or paragraph of a document, or a section of a statute.
The provisions of this will ensure my children inherit the majority of my estate.
A better use by lawyers
Legal writing is improved when simple words and phrases are used in place of longer or more complex ones, especially when writing to clients or giving instructions for them to follow.
Furnish is a good example of a word that lawyers love to use but sounds old-fashioned. In everyday English furnish is how you decorate a room. A lawyer might say:
Please furnish me with a copy of your driver’s licence or passport so I can confirm your identity
This can be improved by writing:
Please provide a copy of your driver’s licence …
A bad use by lawyers
I have already used the word proviso in this article, and you can see it is related to the words provide and provision. It is used to impose a condition to or qualification of a statement or agreement.
The house is let with (or on) the proviso that the tenants pay for the supply of gas, water and electricity.
Proviso is a shortened version of a Latin phrase dating back to the 15th century, translated as “it being provided that”, which lawyers still use today in the shorter form “provided that” and often written in shouty upper case PROVIDED THAT.
In almost all cases, the words provided that can be replaced with “if”, “but” or “however” with no loss of meaning.
Example 1
The purchase price may be reduced provided that the vendor has received an independent valuation report.
Here, provided that means no more than “if”. The ability to reduce the purchase price arises if the vendor receives an independent valuation report, and it may be better to write “only if”.
Example 2
All fixtures installed during the period of the lease by the tenant become the property of the landlord when the lease ends provided that the tenant may remove its fixtures at the end of the lease.
Here, provided that marks the end of one provision (whatever items are affixed to the property by the tenant remain the landlord’s property at the end of the lease) and the introduction of another provision which qualifies the first (the tenant may remove fixed items at the end of the tenancy so that they don’t become the landlord’s property). It is better to say:
All fixtures installed during the period of the lease by the tenant become the property of the landlord when the lease ends. However, the tenant may remove its fixtures at the end of the lease.
Conclusion
The aim of legal writing is to be clear, and our clients expect us to use language that they easily understand. Provide is a word that is easily understood whether English is your first or second language, but it can be misused in legal writing.