February 17, 2009 “Shall”—Once More Unto the Breach
I’ve learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard—he of the blog Are You Writing This Down—I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that you run a mile from shall.
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.
Given that mastery of verb use is essential to control of your contract language, I expect this won’t be the last time I revisit shall.
February 18, 2009 at 9:21 am
Ken:
I used to disagree with you on this. I experimented with both agrees to, must, and will. Ultimately, though I still dislike shall, I decided that using shall is better than the alternatives:
Agrees to is clunky if you have to add timing, place, or condition to the obligation. It becomes more difficult to add those kinds of clauses to the sentence without ambiguity and without confusing business readers.
Must is more useful in expressing conditions than obligations. Using it to express obligations sounds bossier than shall.
Will is more useful in expressing future events that are not obligations. I use it in regulatorily required certifications of future facts that are not contractual obligations. I also sometimes use it in background sections to explain future context.
So, I now use shall consistently.
Chris Lemens
February 24, 2009 at 8:29 am
I agree with you not to use “agrees to,” but for a different reason. Using “agrees to” throughout the contract is redundant, since the contract is the written expression of the parties’ agreement. Why continue to use it? You’ll find you can eliminate it every instance.
February 24, 2009 at 8:40 am
Suzanne: I actually agree with you regarding agrees to. You might be thinking of my analysis of agrees that. Ken