Recently someone from the plain-English camp chided me for disagreeing with “the more progressive view” that one should avoid shall in contract drafting.
Such potshots are, I suppose, inevitable if you publish enough, and they’re best ignored. But what good is a blog if one can’t occasionally use it to set matters straight? So here goes:
My critic says, in favor of banishing shall, that it has been used in as many as eight senses in drafted documents. Well, that’s hardly news—in my seminars I show two slides containing 17 contract provisions, each using shall in a different way. I tell participants that, to my mind, only the first of those provisions uses shall appropriately.
So the question isn’t whether contracts exhibit rampant overuse of shall—they do. Instead, the question is whether disciplined use of shall is preferable to seeking to banishing it altogether. I prefer not to throw the baby out with the bathwater.
For one thing, using shall in a contract to impose an obligation on the subject of a sentence serves to indicate that the duty arises from that provision.
But the argument for shall rests also on the arguments against must and will. One of the shortcomings of must is that it’s bossy in tone and would be grating if used consistently instead of shall throughout a contract. And using will to express both obligations and futurity entails using one word to convey more than one meaning. That’s never a good idea in drafting, and it’s what underlies calls for banishment of shall.
But what’s at stake in all this? My critic says that unprincipled use of shall has bred significant litigation, as attested by 104 pages and over 1,300 cases in Words and Phrases, all interpreting the word shall. I’ve actually consulted Words and Phrases and found that for the most part these cases relate to use of shall not in contracts but in statutes—a very different kettle of fish.
Disputes over the meaning of shall in a contract provision certainly do arise. But the only ones I’m aware of concern whether a provision containing shall constitutes an obligation or a condition. It’s unlikely that replacing shall with must or will in such contexts would solve the problem.
The main problem with overuse of shall isn’t that it results in litigation, but rather that it muddies the different categories of contract language. This makes a contract harder to read and results in the drafter having less control. The solution to this, and any litigation that it does spawn, isn’t a quick fix such as replacing each shall with will or must. Instead, drafters would have to think more carefully about the function of any given provision and use standard English to express it. Shall has a place in this scheme of things.
So I remain, unrepentantly, a champion of disciplined use of shall. And that’s just as well, because the corporate bar will essentially ignore anyone who advocates eliminating shall entirely from contracts.
If anyone has the urge to know more about shall, they might want to consult chapter 3 of MSCD. Real gluttons for punishment should consult chapter 2 of my first book, Legal Usage in Drafting Corporate Agreements.
I like to think I’m open minded, and I’d be happy to entertain specific suggestions regarding use of shall in contacts. But I’d be very surprised if I were to change my position on this in any meaningful way. Those who object to modern approaches to legal writing will sometimes seek to fight battles that have already been fought and won by the forces of modernity. (I’m thinking, for example, of the comment you still hear sometimes—that legalese is somehow more precise than standard English.) To my mind, those who object to shall are in a similar position—while disciplined use of shall will remain a cornerstone of my efforts to teach modern contract drafting, it’s no longer on the front line of developments in contract drafting. I moved on long ago.