More on the point of the discussion, I’m somewhat surprised to hear anyone describing “shall” in the sense of an obligation as archaic. The dictionaries I’ve looked at only question its currency in the sense of futurity, which makes it a very nice disambiguater, as Ken points out. “Will” retains both senses much more equally, and therefore confusingly.

Vance

And there’s no right answer—you have to make tradeoffs. Rather than have everyone strike a different compromise, it would make sense to follow a plausible set of guidelines. In that regard, I hope MSCD‘s recommendations qualify.

Ken

In my (UK English) documents, I seek to avoid using “shall”. I write wherever possible in the present tense, and use “must” for obligations. My non-use of “shall” is not religious, but I avoid it: (a) because it is not a word I would use in ordinary every-day language (except, as you say, in the “Shall we go…” type question); and (b) because its misuse can lead to ambiguity as to whether the writer intended to convey an expression of future intent, or obligation. Whilst disciplined use of the word would work, one can never assume the user will remain disciplined. In the English law, we have a case (Royal Bank of Scotland plc v Jennings [1997] 19 EG 152), where the fact that the rent review clause of a lease provided that, from the review date “…there shall be payment of “ a revised rent, meant that the landlord was obliged to go through a rent review process, rather than merely having an option to do so. This was probably not the landlord’s desire, especially given the fact that the rent review clause provided both for upward and downward movements of rent. Lack of discipline, perhaps.

You may be interested in (or have already read) an excellent article in the New Law Journal (UK) from 1970 at http://www.law-office.demon.co.uk/art%20shall-1.htm . The story of the Scot who falls in to the River Thames declaring that “no-one shall save me” is particularly amusing.

Kind regards,

Alan

On the other hand, I’ve drafted a lot of commercial contracts for enterprise-software companies and other vendors where the customer isn’t completely ‘sold’ yet.

(In the case of enterprise-software deals, the customer often isn’t psychologically ‘sold’ until the software has been installed and rolled out and its users are so comfortable with the software that they wouldn’t want to give it up.)

In those cases, I like to soften most mandatory language by using will. It seems to come across as a bit more deferential to the customer, and respectful of the reality that even on a whim the customer can walk away at any time (before signature), without weakening the mandate if push came to shove. I think it helps to reinforce the impression in the mind of the customer’s contract reviewer (and those of later readers) that the customer is undertaking the obligation voluntarily, as opposed to somehow being forced into it.

(I know, every contract obligation is undertaken voluntarily, but we’re talking sales psychology here.)

EXAMPLE: Instead of, Licensee shall renew maintenance annually for five years, I might say, Licensee will renew maintenance annually for five years.