Comments on: “Shall”—Once More Unto the Breach http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc By: Ken Adams http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/comment-page-1/#comment-95494 Ken Adams Mon, 14 Jun 2010 10:44:33 +0000 http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/#comment-95494 Anthony: If you're using the second person, I recommend you not use "shall." For one thing, traditionally "shall" has been used to express obligation only in the third person. And using the second person is less formal, so you might as well make the entire contract less formal. (But I'm not crazy about using the second person for business contracts.) But more to the point, your language doesn't constitute language of obligation; it's language of policy. (If you want to understand what that means, you'll have to read chapter 2 of my book!) And "provision" is a "buried verb," in other words an abstract noun that you could replace with a verb; use a verb instead. And why the heck would you use "Terms" and "Site" as a defined terms? So I'd say something like "If you provide [Name] with inaccurate information, you will be in breach of these terms and [Name] we will be authorized to terminate your use of this site." (I used "will be authorized" rather than "may" because in this context "may" could be understood as meaning "might" rather than granting discretion.) But you have a tough job ahead of you, as the language you're copying from is almost certain to be utter crap. Ken Anthony: If you're using the second person, I recommend you not use "shall." For one thing, traditionally "shall" has been used to express obligation only in the third person. And using the second person is less formal, so you might as well make the entire contract less formal. (But I'm not crazy about using the second person for business contracts.)

But more to the point, your language doesn't constitute language of obligation; it's language of policy. (If you want to understand what that means, you'll have to read chapter 2 of my book!)

And "provision" is a "buried verb," in other words an abstract noun that you could replace with a verb; use a verb instead.

And why the heck would you use "Terms" and "Site" as a defined terms?

So I'd say something like "If you provide [Name] with inaccurate information, you will be in breach of these terms and [Name] we will be authorized to terminate your use of this site." (I used "will be authorized" rather than "may" because in this context "may" could be understood as meaning "might" rather than granting discretion.)

But you have a tough job ahead of you, as the language you're copying from is almost certain to be utter crap.

Ken

]]> By: Anthony http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/comment-page-1/#comment-95490 Anthony Sun, 13 Jun 2010 18:06:44 +0000 http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/#comment-95490 I am not a lawyer. I just stumbled across your site and am finding it extremely helpful as I am attempting to draft a terms of service agreement for a web-based company that I am preparing to launch. I am borrowing language from a variety of other websites' terms of service and using them as sources to create my own. (I am picturing you shuddering in horror after reading that last sentence.) Would you mind commenting on how you might re-write this sentence that uses the word "shall"? "Your willful provision of inaccurate or unreliable information shall constitute a material breach of these Terms and be a basis for termination of your right to use the Site." It seems to me that the words "will", or "must" convey a slightly different meaning and that "shall" is more effective. Would the word "would" be acceptable? I am not a lawyer. I just stumbled across your site and am finding it extremely helpful as I am attempting to draft a terms of service agreement for a web-based company that I am preparing to launch. I am borrowing language from a variety of other websites' terms of service and using them as sources to create my own. (I am picturing you shuddering in horror after reading that last sentence.)

Would you mind commenting on how you might re-write this sentence that uses the word "shall"?

"Your willful provision of inaccurate or unreliable information shall constitute a material breach of these Terms and be a basis for termination of your right to use the Site."

It seems to me that the words "will", or "must" convey a slightly different meaning and that "shall" is more effective. Would the word "would" be acceptable?

]]> By: Ken Adams http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/comment-page-1/#comment-82703 Ken Adams Tue, 24 Feb 2009 15:40:39 +0000 http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/#comment-82703 Suzanne: I actually agree with you regarding <em>agrees to</em>. You might be thinking of my analysis of <em>agrees that</em>. Ken Suzanne: I actually agree with you regarding agrees to. You might be thinking of my analysis of agrees that. Ken

]]> By: Suzanne http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/comment-page-1/#comment-82701 Suzanne Tue, 24 Feb 2009 15:29:41 +0000 http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/#comment-82701 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. 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.

]]> By: Chris Lemens http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/comment-page-1/#comment-82200 Chris Lemens Wed, 18 Feb 2009 16:21:20 +0000 http://www.adamsdrafting.com/2009/02/17/shall-once-more-unto-the-breach/#comment-82200 Ken: I used to disagree with you on this. I experimented with both <i>agrees to</i>, <i>must</i>, and <i>will</i>. Ultimately, though I still dislike <i>shall</i>, I decided that using <i>shall</i> is better than the alternatives: <i>Agrees to</i> 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. <i>Must</i> is more useful in expressing conditions than obligations. Using it to express obligations sounds bossier than <i>shall</i>. <i>Will</i> 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 <i>shall</i> consistently. Chris Lemens 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

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