PROVISOS,

EXCEPTIONS
AND CLAUSES

Proviso
Refers

to a condition, stipulation or
limitation inserted in a document upon
whose compliance the document's
validity or application may depend.

Provisos
To

limit the application of the enacting

clause, section or provision of a statute,
or except something, or to qualify or
restrain its generality, or exclude some
possible ground of misinterpretation of
it, as extending to cases not intended by
legislature to be brought within its
purview.

Proviso (cont.)
The

common and usual role: restrain or

qualify the generality of the enacting
clause or section which it refers.

Proviso (cont.)
Primary

Purpose:

Limit or restricts the general language or

operation of the statute, not to enlarge it.

Proviso (cont.)
Location:

Commonly found at the end of a statute,

or provision and introduced, as a rule by
the word Provided

Proviso (cont.)
Determined

by:

What determines whether a clause is a

proviso is its substance rather than its
form. If it performs any of the functions of
a proviso, then it will be regarded as
such, irrespective if what word or phrase
is used to introduced it.

Proviso may enlarge scope of

law
It

is still the duty of the courts to

ascertain the legislative intention and it
prevails over proviso.
Thus it may enlarge, than restrict

Example
US

v Santo Nino
Statute: it shall be unlawful for any person to
carry concealed about his person any bowie,
knife, dagger, kris or any other deadly weapon:
Provided, that this provision shat not apply to
firearms in the possession of the persons who
have secured a license therefore or who are
entitled to same under provision of this Act.
Held: through the Proviso it manifested the
intention to include in the prohibition weapons
other than armas blancas as specified.

Proviso as additional
legislation
Expressed

in the opening statement of a

section of a statute.
Would mean exactly the reverse of what
is necessarily implied when read in
connection with the limitation.
Purpose:

To limit generalities
Exclude from the scope of the statute that
which otherwise would be within its terms

What proviso qualifies

General

rule: qualifies or modifies only

the phrase immediately preceding it; or
restrains limits the generality of the
clause that it immediately follows.
Exceptions: unless it clearly appears
that the legislature intended to have a
wider scope.

Exception to the rule

Proviso

construed to qualify only the

immediately preceding part of the section to
which it is attached; if no contrary
legislative intent is indicated.
Where intent is to qualify or restrict the
phrase preceding it or the earlier provisions
of the statute or even the statute itself as a
whole, then the proviso will be construed in
that manner, in order that the intent of the
law may be carried out.

Repugnancy between the

proviso and the provision
Where

there is a conflict between the

proviso and the main proviso, that which
is located in a later portion of the
statute prevails, unless there is
legislative intent to the contrary.
Latter provision, whether provision or
not, is given preference for it is the
latest expression of the intent of the
legislation.

Exceptions, generally
Exception

consists of that which would

otherwise be included in the provision from
which it is expected.
It is a clause which exempts something from
the operation of a statute but express words.
except, unless otherwise and shall not
apply
May not ne introduced by words mentioned
above, as long as if such removes something
from the operation of a provision of law.

Exceptions, generally
Function:

to confirm the general rule;

qualify the words or phrases constituting
the general rule.
Exceptio firmat regulam in casibus
exceptis- a thing no being excepted,
must be regarded as coming within the
purview of the general rule.
Doubts: resolved in favor of general
rule.

Exception and Proviso

distinguished

Exception:

Exempts something absolutely from the

operation of statute
Takes out of the statute something that
otherwise would be a part of the subject
matter of it.
Part of the enactment itself, absolutely
excluding from its operation some subject
or thing that would otherwise fall within the
scope.

Exception and Proviso

distinguished
Proviso:

Defeats its operation conditionally.

Avoids by a way of defeasance or excuse
If the enactment is modified by engrafting upon it
a new provision, by way of amendment, providing
conditionally for a new case this is the nature of
proviso.

Similar: in a way since one of the functions of

proviso is to except something from an enacting
clause.

Saving Clause
Provision

of law which operates to except from

the effect of the law what the clause provides, or
save something which would otherwise be lost.
Used to save something from effect of repeal of
statute
Legislature, in repealing a statute, may preserve
in the form of a saving clause, the right of the
state to prosecute and punish offenses
committed in violation of the repealed law.

Saving Clause (cont.)

Where

existing procedure is altered or

substituted by another usual to save
proceedings under the old law at the
same time the new law take effect, by
means of saving clause
Construed: in light of intent by
legislature
Given strict or liberal meaning
depending on nature of statute.

Statute
Construed as
Whole and in
Relation to
other Statute
Chapter Six

STATUTE CONSTRUED AS A
WHOLE
Generally

Statute is passed as a whole

It

should have one purpose and one intent

Construe its parts and section in
connection with other parts
Why? To produce a harmonious whole

STATUTE CONSTRUED AS A
WHOLE
Never

Divide by process of etymological

dissertation
Separate the words
Separate context
Base definition on lexicographer

The

whole point of this part is to

construe the whole statute and its part
together.

Intent ascertained from

statute as whole
Legislative

meaning and intent should be

extracted/ascertained from statute as a
whole
Optima Statuit Interpretatio est ipsum
statum - the best interpreter of a statute is
the statute itself
Do not inquire too much into the motives
which influenced the legislative body unless
the motive is stated in the statute
themselves

Purpose or context as
controlling guide
Construe whole statute and ascertain the meaning
of the words or phrases base on its context, the
nature of the subject, and the purpose or intention
of the legislative body who enacted the statute.
Give it a reasonable construction
Leeway are accepted on grammatically
construction, letters of the statutes, rhetorical
framework if it can provide a clear and definite
statute.
Harmonize the parts of each other and it should be
consistent with its scope and object

Giving the effect to statute as

a whole
Why construe a statute as a whole?
What if the provision/section is unclear
by itself?
How do you properly and intelligently
construe a provision/statute?

3 ways:
1)

Understand its meaning and scope

2) Apply to an actual case
3) Courts should consider the whole act itself

Giving the effect to statute as

a whole
Why should every part of the statute be given
effect?
Ways on how the courts should construe a statute
(according o Republic v. Reyes):

Interpret the thought conveyed in the statute as

whole
Construe constituent parts together
Ascertain legislative intent to form a whole part
Consider each and every provision in light of general
purpose
Make every part effective, harmonious and sensible

Giving the effect to statute as

a whole
Ut

res magis valeat quam pereat

The construction is to be sought which

gives effect to the whole of the statute
of its every word.

Apparently conflicting
provision reconciled
Included

in the rule of construing

statute as a whole, is the reconciling
and harmonizing conflicting provisions
because it is by this that the statute will
be given effect as a whole,
Why is it a must for courts to harmonize
conflicting provision?