The “Shall” Conundrum: When Use Becomes Abuse

When learning to draft or translate contracts, we’re often taught that “shall” denotes a sense of command. However, a closer look at the contexts in which “shall” is used calls that rule into question.

As a lawyer-linguist, I’m often asked to confirm the accuracy of translated contracts or edit and review drafts by fellow lawyers. These are two of my favorite tasks because I love contracts. I realize that might be an odd thing to say. How can anyone “love” contracts, right? But drafting a solid contract is like solving a puzzle, where each clause is an individual piece that fits perfectly into a beautiful work of legal art that provides a valuable service to our clients. Next to constitutions and bills of rights, contracts are to legal drafting what poetry is to literary writing: an art form in which language is used for its inherent qualities.

It’s said that “a contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty,”1 but it has also been pointed out that, “[t]his, like similar definitions, is somewhat misleading. While it is true that a promise, express or implied, is a necessary element in every contract, frequently the promise is coupled with other elements, such as physical acts, recitals of fact, and the immediate transfer of property or interests.”2

If you speak American English, you rarely get to use the word “shall.” But when you’re drafting or translating contracts, you may be tempted to copy other drafters and translators and fancy-up your writing with the ever-pervasive “shall.” At school in the U.S., many of us were forced to learn the following cumbersome rule:

Simple Futurity
Singular Plural
First person: I shall we shall
Second person: you will you will
Third person: he will they will

 

Determination, Promise, or Command
Singular Plural
First person: I will we will
Second person: you shall you shall
Third person: he shall they shall

 

But out in the real world, this rule is inconsistent with the way Americans actually speak and write, leading many laymen to believe “shall” has fallen into absolute disuse. But legal and translation professionals know otherwise. When learning to draft or translate contracts, we’re often taught that “shall” denotes a command. However, a closer look at the contexts in which “shall” is used calls that rule into question. This is because “shall” is often used to indicate future tense or even permission in American contracts. Thus, the belief that “shall” denotes a command alone is only a half-truth.

In Elements of Legal Style, Bryan Garner, editor-in-chief of Black’s Law Dictionary, recommends cutting “shall” altogether, but for those who are not ready to bury “shall” just yet, he suggests the following rule of thumb:

“If you want to retain shall, then make sure that in each sentence in which it appears, it’s the equivalent of must.”3

This may seem like an attractive solution in light of Garner’s own argument that “few lawyers have the semantic acuity to identify correct and incorrect ‘shalls’ even after a few hours of study.”4 But, as pointed out by Kenneth Adams in his Manual of Style for Contract Drafting, “just because shall passes the ‘has a duty’ test doesn’t mean the provision in question makes sense as an obligation.”5 The question, then, is beyond linguistic.

So how do we, as drafters and translators, know when we’re abusing “shall”? There are at least three very clear and simple cases of abuse that I see in dual language or translated contracts almost every day.

1. When “Must” Does the Job in Conditional Sentences

Let’s look at the following example:

For the purpose of reimbursement for expenses incurred by Acme, Acme shall submit to Widgetco, no later than 60 days after receiving it, each invoice for such expenses.

There are many things wrong with the way this sample provision is drafted, but let’s focus on “shall.” Obviously, Acme doesn’t have an obligation to submit invoices to Widgetco in general. It only has an obligation to submit invoices if it wants to be reimbursed for its expenses. Among other minor adjustments, this provision can be improved by dropping “shall” and replacing it with “must” as follows:

For reimbursement, Acme must submit to Widgetco, no later than 60 days after Acme receives it, each invoice for expenses that Acme incurs.

In the Manual of Style for Contract Drafting, Kenneth Adams illustrates this with an excellent example from the case of Howard v. Federal Crop Insurance Corp., 540 F.2d 695 (4th Cir. 1976).6 The plaintiff-appellants in that case had purchased policies from the Federal Crop Insurance Corporation (FCIC) to ensure their crops against weather damage and other hazards. After incurring losses to their 1973 tobacco crop as a result of alleged rain damage, they sued the FCIC after a claims recovery for those losses was denied. The claim was denied because the fields were plowed prior to inspection by the FCIC adjustor. The provision in question stated that:

The tobacco stalks on any acreage of tobacco of types 11a, 11b, 12, 13, or 14 with respect to which a loss is claimed shall not be destroyed until the Corporation makes an inspection. [Emphasis added.]

The Restatement of the Law of Contracts, §261, states that: “Where it is doubtful whether words create a promise or an express condition, they are interpreted as creating a promise; but the same words may sometimes mean that a party promises a performance and that the other party’s promise is conditional on that promise.”7 The Restatement gives the following example involving a promise:

“2. A, an insurance company, issues to B a policy of insurance containing promises by A that are in terms conditional on the happening of certain events. The policy contains this clause: ‘provided, in case differences shall arise touching any loss, the matter shall be submitted to impartial arbitrators, whose award shall be binding on the parties.’ This is a promise to arbitrate and does not make an award a condition precedent of the insurer’s duty to pay.”

Naturally, the court held that, because there was no language indicating that the provision in question was conditional, it had to be construed as a promise.

2. When Using Future Simple “Will” Does the Job

Future simple tense is used to refer to a time later than now, and expresses facts or certainty. However, if you use the term “will” to do this, you must proceed with caution. Because “will” can also be used to express compulsion (e.g., “as long as you’re living under my roof, you will do as I say!”), it can fall into the same traps as “shall” when used to express anything other than simple future tense. However, if your contract already has one too many “shalls,” then replacing the future simple “shall” with “will” makes perfect sense, despite that risk. For example, this:

The term of this Agreement shall begin on the date referenced in paragraph eight of this Agreement and shall continue until the earlier to occur of […]

Can be changed to this:

The term of this Agreement will begin on the date referenced in paragraph eight of this Agreement and will continue until the earlier to occur of […]

3. When Stating Facts

Because statements of fact are, essentially, statements of what the provisions in a contract should always apply to the current situation (i.e., to what is), they should be drafted in the present tense. Unfortunately, they often get drafted or translated either in: 1) the future tense, or 2) the false imperative.

The Future Tense: Let’s look at the following provision here.

The laws of the State of California shall govern this agreement.

As drafted, this provision is technically saying that the laws of the State of California will govern the agreement at some unstated time in the future. But imagine that it’s been three years since the agreement was executed. If a dispute arose today, the parties would need to know what law governs the agreement today. So, it makes more sense to draft this as:

The laws of the State of California govern this agreement.

If you compare this to the sample provision I used to illustrate when to use “will” in section 2 above, you’ll notice just how much meaning future versus present tense can carry. In the example in section 2, we wanted to indicate a future date (i.e., “the date referenced in paragraph eight of this Agreement” and “the earlier to occur of”). In the current example, we want to indicate that the law governs the agreement now.

This particular example illustrates what Kenneth Adams refers to as “language of policy,” (i.e., “rules that the parties must observe but that don’t, at least expressly, require or permit action or inaction on their part.”).8 His recommendation, to which I adhere, is to use the present tense for policies that apply to the effectiveness of a contract (e.g., applicable law provision) or for policies stating a time of effectiveness or lapsing of effectiveness. He recommends using “will” for language policy related to future events, regardless of whether the timing is certain or not.

The False Imperative: Strictly speaking, the imperative is not a verb tense, but “a mood reflecting a command or request of the speaker.”9 The false imperative gets its name from the fact that it imposes an obligation on a subject that could not possibly carry out that obligation. In the case of contracts, the most common example of the false imperative is when, instead of a party being obligated to do or refrain from doing something, the agreement itself is:

This Agreement shall inure to, and be binding upon, the parties and their respective successors and assigns.

The problem with this clause may not be obvious to the untrained eye, but if you think about it, the subject is “the Agreement,” and “the Agreement” cannot be obligated to do anything. “The imperative ‘shall’ should only be used when someone is being compelled to do something . . . [I]f no person is mentioned, the imperative form is incorrect.”10 This provision makes a lot more sense as a statement of fact in the simple form:

This Agreement inures to, and is binding upon, the parties and their respective successors and assigns.

Walking a Thin Line

Like many other legal writers, I’ve come to realize that, despite my personal views, “shall” is not going anywhere. People are going to keep using it no matter how many times they are advised not to. But there’s a thin line between use and abuse. Used excessively, “shall” can cause problems in both the language of contracts as well as in that of statutes (though that’s a topic for another article). As legal practitioners, the better we write, the better we serve our clients. So, if we can prevent confusion and misunderstandings by toning down our use of “shall” at least one notch, then we should.

Notes
  1. Williston, Samuel. A Treatise on the Law of Contracts (Lawyers Co-operative Publishing Company, 1957).
  2. Perillo, John D., and Joseph M. Calamari. The Law of Contracts (West Publishing Company, 1998).
  3. Garner, Bryan A. The Elements of Legal Style (New York: Oxford University Press, Inc., 2002).
  4. Garner, Bryan A. Garner’s Dictionary of Legal Usage (New York: Oxford University Press, 2011).
  5. Adams, Kenneth A. Manual of Style for Contract Drafting (Chicago: American Bar Association, 2013).
  6. Howard v. Federal Crop Insurance Corp., 540 F.2d 695 (4th Cir. 1976), http://bit.ly/Howard-v-FCIC.
  7. Restatement of the Law of Contracts, §261, http://bit.ly/restatement.
  8. Adams, Kenneth A. Manual of Style for Contract Drafting (Chicago: American Bar Association, 2013), 77.
  9. Hodges, John, Winifred Bryan Horner, Suzanne Strobeck Webb, and Robert Keith Miller. Harbrace College Handbook (Harcourt College Publishing, 1994).
  10. Dick, Robert C. Legal Drafting in Plain Language (Carswell Legal Publishers, 1995).

Paula Arturo is a lawyer, translator, and law professor with nearly two decades of experience in the language profession. She is a co-founder of Translating Lawyers Academy, an online academy that helps legal translators hone their writing and translation skills. She is a member of ATA’s Law Division’s Leadership Council, administrator of ATA’s Literary Division, co-head of the Legal Affairs Committee at the International Association of Professional Translators and Interpreters, and a member of the Public Policies Forum of the Supreme Court of Argentina. Her bragging rights include translating the works of several Nobel Prize laureates and world-renowned jurists. You can read her blog at https://translatinglawyers.com. Contact: paula@translatinglawyers.com.

1 Responses to "The “Shall” Conundrum: When Use Becomes Abuse"

  1. Svetlana says:

    A contract is a formal thing, always. It’s never a promise. Not a way to chat with friends. Rather it establishes a procedure. So the use of ‘shall’ is correct when talking about obligations. Always.

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