June 23, 2008 A Law Firm that Forbids Use of “Shall”?—Addendum
In this post I described how I had heard someone cite by name some companies and one law firm—a multi-office U.S. law firm—that had foresworn use of shall. Well, recently I had the privilege of giving a series of seminars at that law firm, and I was tickled to be able to ask two senior corporate partners whether their firm had in fact issued an edict against use of shall. They were mightily puzzled by the notion.
So to reiterate, you should be very skeptical of pronouncements that such-and-such law firm or company has banned use of shall in its contracts, unless the person speaking is from that law firm or company.
June 23, 2008 at 9:27 am
What I find particularly aggravating is the use of ‘will’ and ‘shall’ interchangeably. It is bad enough when ‘will’ appears where ‘shall’ belongs, but they are not synonymous. As I believe I may have mentioned in an earlier e-mail, the grammarian who falls overboard is unlikely to call out “I will be drowned and no-one shall save me!” rather than “I shall be drowned and no-one will save me!”
If we are going to be ungrammatical, let us at least be consistent
June 23, 2008 at 4:04 pm
Drafting gurus provide a surprising amount of contrary advice on whether to use shall, will, or some other term.
On the one hand, I took a drafting course a few weeks ago and the professor told me unequivocally that drafters should use “shall” and not “will” because “will” might be interpreted to be merely predictive instead of mandatory.
On the other hand, Bryan A. Garner says unequivocally that drafters should not ever use “shall” both because it is not plain English and because “[i]n just about every jurisdiction, courts have held that shall can mean not just must and may, but also will and is.” Legal Writing in Plain English 104 (emphasis and citations removed).
June 23, 2008 at 4:50 pm
S: One hears a lot of nonsense about use of shall. If you haven’t already, you might want to consult my article on the subject. It forms the basis for the analysis that’s in the second edition of MSCD. Ken
June 23, 2008 at 5:08 pm
With respect to S’s post, I don’t believe that Garner advocates unequivocally against the use “shall,” which some drafters carelessly use in the same document to mean “must,” “may,” or “will”. I believe his position, which is based on the potential problems that this poor technique can cause in any subsequent litigation, is more properly characterized as a recommendation against its use. If it is used, he suggests that its use be restricted only to mean “has a duty to” in order to maintain consistency throughout the document. As Ken’s Manual details in several sections, the word “shall” does have value. But, its utility is too often abused and, frankly, as exceedingly tiresome as it is to read sentence after sentence of “shalls”, it is exceeding annoying to read sentence after sentence of “shalls” that jump all over the place in meaning.
June 23, 2008 at 5:42 pm
Craig: Trust me on this one: Bryan Garner is an anti-shall absolutist. I’ve spoken with him about this. Ken
November 19, 2008 at 8:31 am
[...] And aside from the fact that shall serves a useful function, it’s firmly entrenched in transactional circles. At any given time some lawyers, or entire organizations, might eschew shall, but there’s no sign of any wholesale flight from shall. One hears claims otherwise, but my inquiries suggest that such claims are suspect. See, for example, this blog post. [...]
February 17, 2009 at 2:23 pm
[...] I took the liberty of posting this comment on Jay’s blog saying that for purposes of business contracts, I’ve concluded that using shall, as opposed to must or will, is the least-bad alternative. But that’s only the case if you use shall in a disciplined manner—in other words, use it only to impose an obligation on the subject of a sentence. I explain my position exhaustively—exhaustingly?—in chapter 2 of MSCD, as well as in this article. And I discuss shall in this November 2008 blog post and this June 2008 blog post. [...]