More on “Shall” by Bryan Garner

Bryan Garner has an article on shall in the current issue of the ABA Journal (go here for the online version).

It doesn’t say anything new, and I don’t need to add anything to what I said in this post from September 2011.

 

Posted in Categories of Contract Language | 22 Comments

  • A. Wright Burke, M. Phil.

    The September 2011 post says that you recommend that “shall” be used to impose a duty on the subject of the sentence. But you recommend more than that, namely, that the subject of a “shall” sentence be one or more parties to the contract. Perhaps that’s implicit, since a contract can’t generally impose a duty on a nonparty. 

    Switching gears a bit, can drafters sometimes express construction policies as duties that indirectly bind nonparty courts? (This would be an alternative to your already-recommended “is to be” formulation and to simple definition.) Example: “The parties shall construe this agreement as the joint work of the parties.” A judge would be unlikely to say, “Maybe the parties shall, but I shan’t.”By the way, any time is a good time to reconsider your preference of “obligation” (ten letters, four syllables) over “duty” (four letters, two syllables). They’re equally Latinate, but “duty” is easier to chew and has fewer calories.

    • http://www.koncision.com Ken Adams

      Judges routinely say, in effect, “I shan’t.” And FYI, the third edition will be consigning is to be to the boneyard.

      Yes, I’ve pondered duty versus obligation, and I’ll ponder it some more, but currently I’m not convinced that the benefits of changing to duty are sufficient to overcome inertia.

      • Anonymous

        What should, however, go into the mix is the verb “oblige” as a substitute for “obligate.” The latter is merely an overblown, bloviated back-formation from “obligation,” while the former is the true verb.

        Elegance should count for something, even in the legal world.

        Much obligated if you’d consider it.

        • Anonymous

          If you don’t like “obligate,” then “orientate” probably makes you, ahem, talk to Ralph on the big white phone. More power to you!

        • Chris Lemens

          Vance:

          Oblige, in ordinary use, refers to a moral duty. Obligate, in ordinary use, refers to a legal duty.

          Maybe this is only true in my the southern US, but I think it is true most places. I’ve never heard someone without a southern accent use the word obliged. And even then, it is in the phrase “much obliged.”

          I don’t think I would be happy talking to a jury about how the other party was obliged to do something. I would much rather tell them how the other party was obligated.

          Chris

          • Anonymous

             I think you’re just making that up. I’ve never heard anyone try to distinguish the meanings of “oblige” and “obligate.” But then, I don’t speak with a southern accent; not even a South Boston one.

          • http://www.koncision.com Ken Adams

            I’m roughly with Chris on this. When I think of obliged, I think of a plummy Brit saying “Much obliged, old chap!” UK drafters prefer obliged over obligated.

            But more to the point, I don’t use the verb obligated, precisely because I don’t want to get into a US v. UK standoff. As one variant of language of discretion, I recommend “is not required to.” That’s my only contact with the issue.

          • Westmorlandia

            This is a well-known UK-US distinction. The word “obligate” doesn’t really exist in the UK, and sounds like a solecism to most ears. “Oblige” refers to both legal and moral obligations.

            I understand the distinction is common in the US. I therefore try to avoid using both “oblige” and “obligate” where I can (which I think is always).

          • http://www.koncision.com Ken Adams

            I think one of your previous comments helped draw my attention me to this issue.

          • Chris Lemens

            Vance:

            Bryan Garner’s Dictionary of Modern Legal Usage says that, in legal contexts, both words mean “to bind by law” but that obligate is more frequent. He also says that oblige is used in the sense of binding by legal tie only in legal writing. He lays out other meanings associated with oblige that are not related to obligate. The adjective obliged means bound by kinds of ties where the adjective obligated will not do. Oblige is a casualism for favoring bestowing, or entertaining in the sense of permitting, such as when the court obliges a party’s request to do something.

            All of this is why I said what I did about ordinary usage. Contract drafting should not necessarily conform to ordinary usage, but you have to think about potential consequences if it does not. In particular, I would be worried about what the jury would think was meant by “oblige” if it was used for a somewhat vague duty, such as to use reasonable efforts to do something. Of course, if your jury will hear it the same way you do, then there wouldn’t be an issue for you. (Just don’t agree to my choice of venue.) From a couple other comments, juries in Britain would probably be confused if I used obligated rather than obliged.

            All that said, I’d prefer to use neither word. I can’t recall the last time I found it necessary to say that someone was obligated or obliged to do something. There are usually better solutions.

            Chris

          • Anonymous

            Fair enough to avoid either whenever possible. Sometimes (not often, I hope) the drafting becomes too convoluted, in which case I’ll go for “obliged” if I can get away with it, to avoid the clango(u)r in my ears the alternative would engender.

            And thanks for the warning on your venue clauses!

      • Anonymous

        “Inertia”? Isn’t that the thing that hallows “witnesseth”? Just put in a definition “‘Duty’ means ‘obligation’” and Bob’s your uncle.

        • http://www.koncision.com Ken Adams

          Let me ruminate, darn it!

        • Westmorlandia

          I think “duty” is used more commonly to refer to fiduciary duties, duties of care and so on – non-contractual law that requires certain standards of behaviour rather than specific actions. I don’t often see those called “obligations”.

          I also very rarely see contractual obligations referred to as duties.

          I suspect there was once a clearer linguistic distinction than there now is, though this is just a hunch. The conceptual distinction is very useful in law, and I like the idea that the language can cater for it. That said, even if this were the case, obviously few people are aware of the distinction or use it consistently (at least consciously). And it may not quite be as simple as that. But I am fairly sure that the terms are not actually used synonymously, even in general parlance.

      • Chris Lemens

        Ken:

        With what are you going to replace “is to be”?

        Chris

        • http://www.koncision.com Ken Adams

          I don’t have on hand exactly how I parceled out that meaning, but language of intention has a role to play. Basically, I decided that presuming to instruct a court how to behave was unpromising. I’ll provide more complete details in due course.

    • http://www.ipdraughts.wordpress.com/ Mark Anderson

       Taking that one stage further (and applying the principle of lingua in maxillam), how about a clause that says something along the lines of “The Parties instruct the court to ignore the ‘canons of construction’ and other fusty lawyers’ techniques and focus purely on the text of this Agreement.”

      • http://www.koncision.com Ken Adams

        If a contract is unclear, courts have three choices: (1) apply a rule of construction; (2) looks to drafts, notes, and correspondence for clues regarding what the parties had intended; or (3) declare that you can’t determine what meaning had been intended. I assume that removing the first option would result in courts going for the third option more often. I suppose that whether a court cobbles together some “fair” solution or declares the contract unenforceable would depend on the jurisdiction.

        But if a contract is unclear, telling courts to rely purely on still leaves them with an unclear contract.

        • http://www.ipdraughts.wordpress.com/ Mark Anderson

           Fair point, and I wasn’t really serious about including that statement in a contract.  And yet another part of me would like to do away with eiusdem generis, contra proferentem, and all the other canons that have been encrusted with case law over many years.

          • http://www.koncision.com Ken Adams

            Contract disputes are messy, and it’s unrealistic to expect that the work courts do to resolve contract disputes will be anything other than messy too. So if they have to break the logjam by invoking arbitrary principles of interpretation, so be it. Just spare me the sanctimony! That was the point of my post about Scalia and Garner’s book.

  • Pingback: Koncision » “Obligation” and “Duty”

  • Paul Comeaux

    Much more important than whether you prefer “will” or “shall” is having the perspective to never change “will” to “shall” or “shall” to “will” in a draft document from the other side.   : )