Comments on: A Law Firm that Forbids Use of “Shall”?

By: Jorge Mafud

Jorge Mafud — Tue, 04 Nov 2008 20:39:22 +0000

Hi… I’m a Mexican lawyer who has worked at global companies and I’ve had my share of agreements in english. I do not have US law education so everything I know about american law I’ve learnt from reading and practice. Now, honestly, I had seen a discussion about the use of “shall” and “will”. Personally, I prefer the use of “shall” since it imposes an obligation. I find it very intersting to read about this issue.

Congratulations for this blog, it is VERY instructive! Regards.

By: AdamsDrafting » Blog Archive » A Law Firm that Forbids Use of “Shall”?—Addendum

Mon, 23 Jun 2008 12:37:52 +0000

[...] this post I described how I had heard someone cite by name some companies and one law firm—a multi-office [...]

By: Sol Irvine

Sol Irvine — Tue, 11 Dec 2007 17:07:39 +0000

I can tell you that a number of partners who fancy themselves “plain English” drafters have directed me to use “will” in place of “shall”, but no one has ever insisted on “shall”.

There is a school of thought that feels “shall” is antiquated. I’m not sure this school of thought takes into account the potential ambiguities conveyed by “will”. The rationale I hear most often can be summarized as: “will” conveys a less adversarial, positional tone, and is optically more favorable.

Personally, I think the decision about whether or not to use “shall” has a lot to do with the fundamental tension drafters feel between: (a) nailing down unequivocal attributions of responsibility, and (b) maintaining (and not undermining) the conciliatory tone that often dominates the business end of the transaction.