Legal English Shot – Shall we or shall we not?

A few remarks on the use of the modal verb “shall” in contracts and other legal documents

The use of the modal verb “shall” in laws and contracts is a matter of much controversy in the world of legal English.

While it is generally recognized that “shall ” (to indicate the future, an obligation or an intention)[1] has fallen into disuse in everyday language, it is still very frequently employed in legal English.

In its original sense, “shall” was used to imply an obligation – and it is in this sense alone that legal linguists recommend that it be used, and also advocate for its continued use.

  1. The alternative is to employ other words or phrases in its stead, such as “must”, “has a duty to”, “has an obligation to”, “is to be”, “it is the duty of”, and the like.

Certain purists, led by Ken Adams,[2] argue that “shall” should be used only where it imposes an obligation on the subject of the sentence and can thus only be used for persons (the defect must be cured; the contractor shall cure the defect).

Shall” is nevertheless also used in many other contexts, which has contributed to its notoriety as a dangerous and ambiguous choice of words. There is a vast body of case law on its possible interpretations.[3] Among the various senses in which it is employed, the following are particularly noteworthy:

  1. Expressing an assumption or a precondition: in such cases, “shall” can be replaced by use of the past perfect or the present

For example: “If the tenant shall give the landlord six months previous notice and shall up to the date of termination pay the rent…” can be replaced by: “If the tenant has given…and pays the rent…”

  1. Expressing permission: in which case, “shall” can be replaced by “has the right to” or “may”.

For example: “… all lots uncleared within the time aforesaid shall  be resold by public or private sale…” may be replaced by “… all lots uncleared within the time aforesaid may be resold by public or private sale …”[4]

  1. Expressing intent: in which case, “shall” can be replaced by “intends to”.

For example: “… Motorplus Ltd shall  refer a quantity of [specified type] claims to PM Law Ltd Solicitors …” may be replaced by “… Motorplus Ltd intends to refer a quantity of [specified type] claims to PM Law Ltd Solicitors . ..”[5]

  1. Expressing a recommendation: in which case “shall” can be replaced by “should” or “ought to”.

 

Because of the serious difficulties of interpretation that can result from its multiple senses and the often inconsistent use of shall within the same document, many legal stylists argue that use of the term should be gradually or even immediately discontinued in favour of the circumlocutions suggested above.[6]

Unlike the European Union, which continues to use “shall” in its legislation in a wide range of different senses,[7] the United States, Great Britain, Canada, and Australia today avoid the use of the modal “shall” when drafting new statutes.[8] The notion of obligation is consistently expressed through the verb “must” and archaic phraseology has been simplified (“This Act shall cease to have effect” –> This Act ceases to have effect”; “The Authority shall consist of 10 members” –> “The Authority consists of 10 members”). Legislators in the Anglo-Saxon countries have explained this change in practice by taking reference to the “plain English” movement and the need to write laws in terms that are accessible and comprehensible to all citizens.

The main arguments in support of continuing to use “shall” invoke long-standing tradition and the desirability of preserving the solemn character of laws and legal documents. In addition, some lawyers believe that their clients could be offended by contractual clauses ordering that a party must do something, as being overly authoritarian in tone. They thus prefer the traditional wording, which in their view sounds more respectful.

What ought we to do, then?

Each lawyer has his or her own style and priorities: some prefer a more traditional, classic style, despite the risks of ambiguity. Others take a more modern approach, aiming for simplicity and ease of comprehension.

At Hieronymus, we take a flexible approach, adapting our translation style to the wishes of each client. As a general rule, for contracts or documents intended for a legal or financial audience (e.g. share purchase agreement, fund prospectus, etc.), we use “shall” only in the strict sense of ” must “. Any other use of “shall” is allowed under our style guide only if the translation assignment we have been given is intended to complement an existing translation: in such cases, priority is given to maintaining consistency with passages already translated.

For translations intended for a wide audience, such as general terms and conditions or articles of association of Swiss companies, we are of the view that the use of “shall” should avoided.

Rather than using “shall” to impose an obligation, we recommend the following expressions:

IS TO

The court shall reject the request for bankruptcy

  • The request for bankruptcy protection is to be rejected by the court

(Le juge rejette la réquisition de faillite / Das Gericht weist das Konkursbegehren ab)

IT IS THE DUTY/OBLIGATION/RESPONSIBILITY OF

Upon request by one of the parties, the court shall establish

  • It is the duty of the court, upon request by one of the parties, to establish

(À la requête d’un époux, le juge fixe… / So muss das Gericht auf Begehren eines Ehegatten … festlegen)

MUST

To avoid an overly authoritarian tone, “must” can be used in the passive:

The client shall make payment upon delivery of the project

  • Payment must be made by the client upon delivery of the project

 

Please feel free to send us any remarks or questions you may have in the comments field below or by e-mail.

 

 

 

 

 

 

 

 

[1] According to the old rules preserved in the Oxford English Dictionary, the meaning of “shall” varied depending on the subject. I/we will indicated an obligation, while I/we shall indicated a future intention. Conversely, you/he/they will implied a future intention and you/he/they shall an obligation. According to the Oxford English Dictionary, both modals are today used interchangeably in the UK, while shall is practically never used in everyday language in the US (“Shall” Or “Will”? | Lexico).

[2] Revisiting Use of “Shall” in Contract Drafting – Adams on Contract Drafting (adamsdrafting.com)

[3] According to PLAIN, a U.S. federal government task force that promotes the use of plain language, the reference work Words and Phrases (Words and Phrases® | Legal Solutions (thomsonreuters.com) contains more than 76 pages summarizing the U.S. case law relating to cases in which ambiguous use of the word “shall” in contracts played an important role (Shall and must | plainlanguage.gov).

[4] This clause was in fact interpreted in Robinson, Fisher & Harding v Behar [1927] 1 KB 513 as merely allowing the auctioneer to resell the lot, and not obliging it to do so. Cited by Daphne Perry, Why must and will work better than shall in business contract drafting – ClarifyNow

[5] This clause was interpreted in PM Law Ltd v Motorplus Ltd [2018] EWCA Civ 1730 (26 July 2018) (bailii.org) as describing a mere intention of the parties at the time of the conclusion of the contract, without any binding effect.

[6] E.g. Bryan Garner, Peter Butt and Richard Castle; see also Drafting Guidance of the Office of the UK Parliamentary Counsel of June 2020 ,guidancebook.book (publishing.service.gov.uk); US Federal Rules of Appellate Procedure of 1 December 2020 ,Federal Rules of Appellate Procedure | US Law | LII / Legal Information Institute (cornell.edu) and footnote 3.

[7] According to R. Foley, Legislative Language in the EU: The Crucible, “shall” expresses something other than obligation 45% of the time.

[8] Paul Kendall Cooper, Is there a case for the abolition of ‘shall’ from EU legislation, RGSL Research Papers, 2011, Microsoft Word – Title page_2011 (rgsl.edu.lv)

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