I recently received from a reader the following email bringing to my attention shall refrain:
Have you ever seen or written about a negative covenant written as “shall refrain from” instead of “shall not”? I see it today in an NDA from another party. It gives me some heartburn that the other party is obligated just to “refrain from” disclosing our client’s confidential information. The dictionary.com definition of refrain is “to abstain from an impulse to say or do something.” It sounds a little soft, a little too much like just trying. Am I being petty if I mark that up and send it back?
When someone asks you to refrain from doing something, the implication is that they’re relying on your self-control. It’s used in social contexts—Please refrain from picking a fight with your Uncle Roger. The consequences of failing to refrain from a given action in a social context presumably depend on exactly what the context is, and might be limited to mild disappointment.
You also see refrain used in less intimate contexts when it’s incumbent on the speaker to be polite—when, for example, someone is issuing instructions to customers. In this context, failing to exercise appropriate self-control can have unpleasant consequences. If a flight attendant asks you to please refrain from smoking and you do so anyway, you can expect a response that’s considerably more vigorous than mild disappointment.
For purposes of contracts, you’d likely have a hard time claiming that refrain expresses something less than outright prohibition. But why risk finding yourself having that discussion? When reviewing a contract, I’d have no hesitation changing shall refrain from to shall not, and that’s what I told the reader who posed the question.
And there’s no downside to omitting refrain from contracts. Because contracts are for articulating rules and have no voice, they’re not the place for namby-pamby deference of the sort exemplified by refrain.
“Shall refrain” really annoys me just because it sounds too hoity toity, and you’ve now reinforced my dislike. However, I’d never strike it from a draft sent from the other side in a deal. Moreover, if I did strike it and the other lawyer stuck it back in, I’d certainly not keep arguing about it. Why not? For two reasons: 1) I don’t want to risk irritating the other lawyer over something that makes so little difference. I’ll save that chit for something more important. 2) Life is short, and I don’t want to spend my own time on things like that. But to each his or her own.
I’m going through something similar around this word right now.
I review translations of statues and the head of the translation team (non-native-speaker) keeps insisting that a phrase should read “shal personally refrain from” deliberation/resolving on… etc. He cannot seem to accept that “personally” adds zero meaning meaning to an already weak word. I insist that precision is NOT served here, and that concision certainly is not either. Mindless.
As a translator, I understand your pain completely. And yes, “refrain” is pretty useless. However, there is no need to fight the guy here. The translation will be more faithful to the original than without it, because if one in a million situation happens and this is contested before the court, they have nothing on you. Maybe they want “refrain” for some hidden elaborate plot to use later and their legal counselors think it will help them.