Does legal-speak have value?
An IACCM member recently asked whether the word ‘shall’ implies obligation to perform. The question inspired lively discussion among my legally qualified colleagues.that wasn’t so much to do with the question of interpretation, but more to do with how ridiculous it is that we even have the debate.
By way of illustration, one of them cane up with this rather amusing example of the importance of plain language (and cultural awareness):
“Should we use “shall” or “will” – a little anecdote:
“I’ve fallen in the water and I will die!” the Scotsman cried. A group of Englishmen there looked on and did nothing, the bastards. In court, it was realised they took the Scotsman’s will to mean that he wanted to die (which is what it means to English people in English usage). Had the Scotsman said “I shall die” or the even better “I am going to drown,” the Englishmen would know he was in imminent danger of drowning and needed saving. Alas, the Dutchman (or German or whatever) sitting in the gallery quietly muttered to himself, “Why can’t he just say, ‘Help me!’?” The sheriff sitting next to him quietly said, “He didn’t say please…”
So the conclusion of this story? For one of my colleagues, it was simply ‘Why can’t we just say what we mean, using normal words?’ But for another the debate represented a source of considerable value – if you happen to be a lawyer. And that took us to another debate – ‘you shall pay my bill’; ‘you will pay my bill’; ‘you must pay my bill’. What’s the difference (apart from the size of the bill!).
Ken Adams, what do you say?
Commitment Matters 
OK, fasten your seat belts …
The starting point in any discussion of “shall” is acknowledging that THERE IS NO RIGHT ANSWER! Instead, there are trade-offs.
What’s most important to you? Not using in contracts a word—“shall”—that’s falling out of use, particularly in North America? Not using a word that’s grossly overused in contracts? In that case, you’ll want to use “will” or “must” instead.
But if what’s most important to you is distinguishing between the different kinds of meaning conveyed by different verb structures—in other words, the different “categories of contract language”, to use a term I coined—you’ll want to stick with “shall”.
Yes, we all know the shortcomings of “shall”. But the solution isn’t to throw “shall” under a bus.
Instead, use “shall” only to impose a duty on a contract party that’s the subject of a sentence, as in “Acme shall purchase the Shares”. Using “shall” in that manner makes it easier for the drafter, and the reader too, to distinguish language of obligation from other categories of contract language, including those using “will” and “must”. The test for this use of “shall” is whether you can replace it in your mind with “has a duty to”. If a given “shall” doesn’t pass the has-a-duty test, that’s a sign that you should use some other verb structure.
Because adding disciplined use of “shall” to the verb structures available to drafters goes a long way to helping reduce verb-structure confusion, I’m fond of saying that if “shall” didn’t exist, we’d have to invent it.
Pointing to litigation over “shall”, scaremongers say that “shall” is dangerous. But much of that litigation relates to statutes, where the role of “shall” is more confusing than it is in the case of contracts. And most of the remaining litigation involves confusion that wouldn’t be resolved by banishing “shall”, primarily uncertainty whether what’s being expressed is an obligation or a condition.
If you look at the caselaw involving use of “shall” in contracts, you in fact see a general consensus that the core function of “shall” is expressing that which is mandatory. Last year I did a blog post about a curious feature of that caselaw, use by courts of the phrase “‘shall’ means ‘shall’”: http://www.adamsdrafting.com/shall-means-shall/.
A revealing feature of contracts purged of “shall” is that invariably they feature other verb-structure dysfunction. See for example my analysis of a Google services agreement: http://www.adamsdrafting.com/googles-services-agreement-lots-of-room-for-improvement/. That suggests to me that those eager to eliminate “shall” from contracts have been seduced by the superficial modernist appeal of that idea and lack a broader understanding of the issue.
So what’s to be done? Those who want to understand use of “shall” and the categories of contract language more generally should consult my book A Manual of Style for Contract Drafting. (The American Bar Association recently published the fourth edition.) Chapter 3 contains the only comprehensive discussion of the subject. To get a taste of it, check out the “quick reference” I link to in this blog post: http://www.adamsdrafting.com/first-draft-categories-of-contract-language-quick-reference/. It’s a draft; I’ll soon post on my blog the version that’s in the fourth edition.
Beyond that, I’d like to reduce verb-structure confusion by taking away from most people who work with contracts any responsibility for making decisions over verb structures. That would be accomplished by putting contract drafting in the hands of specialists and having most people draft contracts by answering annotated online questionnaires, with a suitably customized draft being the result.
I hope that’s of some help, Tim!
Thank you Ken! I shall / will / must try to remember this when I’m drafting my next agreement!