— Matthew Salzwedel (@mrsalzwedel) May 8, 2014
I replied to Matthew that I’d answer his question on my blog, so here we go.
I’m not going to revisit at length the merits of using shall in contracts solely to impose an obligation on the subject of the sentence (assuming that the subject is party to the contract). That’s something I drone on about in MSCD; you get a taste of it in this 2011 post.
But the gist of it is that diagnosing the kind of meaning one is seeking to convey in a given sentence and the verb structure that’s appropriate for that meaning—a process for which I use the label “the categories of contract language”—is made much easier if you give shall that role. That frees up must and will to serve different functions; using either word to convey two meanings is a bad idea. And you can use the “has a duty” test to police your use of shall.
But you can expect that for the indefinite future most drafters will continue to drastically overuse shall. Is that reason enough to get rid of shall in contracts? For three reasons, I suggest that it isn’t.
First, a saving grace of contract drafting is that I don’t have to follow the herd. Instead, I can create my own universe, one that is clear and avoids risk. (Yes, even taking into account caselaw.) I don’t have to drink the Kool-Aid. I don’t have to join in some race to the bottom.
Second, based on my review of a few BigLaw Australian contracts that don’t use shall, as well as a Google services agreement that doesn’t use shall (see this post), I’ve concluded that eliminating shall gets rid of the most obvious symptom of category-of-contract-language dysfunction but doesn’t fix the broader problem—those contracts still exhibit muddled verb structures, with what should be conditions being expressed as obligations, and so on. I’m not into cosmetic fixes.
And third, perhaps shall can be rehabilitated. In that regard, I noted with interest the following extract from this account of the word flammable sent to me by the perspicacious A. Wright Burke, who said that it brought to mind my campaign for disciplined use of shall:
From the beginning of the twentieth century the potential confusion [between non-flammable and inflammable] started to worry American safety experts and insurance companies. Under their urging, flammable had begun to appear in safety advice and local bylaws in the first decade of the century but it was then a technical term unknown to the wider public. In 1920, they ran a campaign to try to change the language. This notice appeared widely in technical journals:
The National Safety Council, The National Fire Protection Association, and similar organizations have set out to discourage the use of the word “inflammable” and to encourage the use of the word “flammable” instead. The reason for this change is that the meaning of “inflammable” has so often been misinterpreted.
It was convenient that these bodies had words with which to replace the potentially disastrous ones. Flammable had been created early in the nineteenth century from the same Latin verb flammāre, to set on fire, that’s also the source of inflammable; flammability had appeared two centuries earlier still. Though they had never caught on, they were available to be resurrected [this last bit of emphasis supplied by A. Wright Burke].
Time will tell whether my championing of disciplined use of shall makes a dent in the marketplace of ideas. But I’ve seen some promising signs. For example, at the recent ReInvent Law conference in New York, I found myself sitting behind a group of knowledge-management people from Canadian law firms. The first thing one of them said to me, even before “Hi,” was “Thank you for making shall safe to use again!”