What is the difference between a clause and a provision?
The difference between the terms "clause" and "provision" can be confusing. Each term has more than one meaning, and legal writers sometimes switch back and forth between "clause" and "provision" without clarification.
If you enter into a legal agreement, you should understand every word in the document, including "clause" and "provision."
Grammarians define a clause as a part of a sentence containing a subject and a predicate. It is also a legal term. According to "West's Encyclopedia of American Law," a clause is a portion of a legal document that refers to a certain point or issue. A single contract, employment agreement, law or treaty can incorporate many clauses, each of which may be a section, a paragraph or even a phrase.
Legal professionals often use the word "provision" to describe a clause. For instance, "Nolo's Plain-English Law Dictionary" states that a "grandfather clause" is a provision in a new law limiting enforcement to those who are new to the system. Since "provision" refers to providing, and a clause provides for something, the terms are almost synonymous. However, they are not interchangeable. The legal term for a part of a document referring to a particular point is "clause."
Types of Clauses
An "in terrorem clause" is a provision in a contract or a will meant to frighten a person into abiding by its terms. For instance, a will might include terms disinheriting an heir who challenges the will in court. A "zipper clause" in a labour contract may act to close off, or "zip shut," employee bargaining rights by stating that the agreement constitutes complete and exclusive consent to its terms. There are many other types of clauses, from a simple description of the parties to the Supremacy Clause in the U.S. Constitution.
Types of Provisions
A legal document may use the word "provision" in more than one way. For instance, U.S. Executive Order 12333, Section 1.4, cites the "provisions of this order." In this case, "provisions" refer to parts. But later in the same section, the document authorises "provision of services." Here, "provision" means "delivery" or "performance."
Courts use guidelines called "rules of construction" to assist in establishing the validity of contract provisions. These rules help the court determine the parties' intent. One guideline is that an obscurely written clause should be interpreted so as to agree with the document as a whole. Another rule is that, unless otherwise stipulated, words have their ordinary meaning. Rules of construction attempt to uphold contracts whenever possible.
Read legal documents carefully before signing, including each clause. A clause may protect you or it may abridge your rights. If you are uncertain about any portion of a document, go over it with a lawyer before you sign.