Yes, it’s time to return to the shall wars.
Thanks to the article by Lori Johnson that I discuss in this post, I’d now like to consider a court opinion that I overlooked when it first appeared. I’m referring to Lubbock County Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297 (Tex. 2014) (PDF here).
The Court Opinion
This case involved a dispute between the commercial tenant of a marina, Church & Akin, and its landlord, a county water control and improvement district. The tenant sued for breach of contract, and the landlord pleaded governmental immunity. The tenant in turn claimed that immunity had been waived in accordance with a statute granting a limited waiver for contracts that state “the essential terms of the agreement for providing goods or services to the local governmental entity.” The trial court denied the landlord’s plea, and the court of appeals affirmed, but the Texas Supreme Court reversed.
Part of the argument over whether the waiver applied involved the following from the contract between the tenant and the landlord:
The marina will issue catering tickets that will be redeemed at the gate for admittance to the lake. These tickets will be redeemed by the marina at the price of $1.00 each. They will only be available to persons coming into the marina.
The tenant argued that this provision required the tenant to provide a service to the landlord by issuing catering tickets. The court disagreed, concluding that “the purpose of the catering tickets was to benefit Church & Akin’s marina business.” It went on as follows:
[W]e read this provision of the agreement as the parties’ acknowledgement that Church & Akin intended to and could issue marina tickets for the benefit of its business, not as agreement to issue such tickets as a service to the Water District.
The dissent disagreed:
The ticketing clause requires Church & Akin to use the premises. In mandatory language, the clause demands that Church & Akin will issue the tickets.
The Broader Context
We can draw two lessons from the Lubbock opinion.
There’s a narrow lesson: if you’re looking to limit the chance that something you want to be interpreted as an obligation is instead interpreted as a condition, your best bet is shall. In Lubbock, the court considered something expressed using will and in effect decided that it expressed a condition. By contrast, when courts are asked to decide whether language using shall expresses an obligation or a condition, it’s likely that they’ll conclude that it expresses an obligation. (See MSCD 3.266–.67 for more about that.) This shouldn’t come as a surprise. Although shall is drastically overused, its core function is expressing obligations. By contrast, if you use will not only to refer to the future but also to express obligations, you’re repurposing it to serve a function that it doesn’t usually serve.
But there’s a broader lesson: overuse of shall isn’t a source of verb-structure confusion, it’s a symptom. Lubbock shows that getting rid of shall in favor of will has no bearing on confusion over whether something expresses an obligation or a condition. The Lubbock court, sensibly enough, wasn’t fixated on verb structures. Instead, it explored the business realities of the relationship between the landlord, the tenant, and customers of the marina. I suggest that it would have made sense to have the provision at issue begin as follows: “If the marina issues catering tickets …” That’s consistent with the court reading this provision as saying that the tenant could issue marina tickets.
It follows that I don’t agree with Lori Johnson’s assertion that the Lubbock opinion “creates a strong uncertainty as to whether Garner’s preferred method of obligating parties to act is enforceable in a Texas court.” The issue wasn’t will versus shall. (For my thoughts on Bryan Garner’s recommendation that one use will to express obligations, see this 2011 post.)
It also follows that I think D.C. Toedt is missing the point in saying in this post that because of this court opinion, he’ll “seriously consider” using the following internal rule:
Unless the context clearly requires otherwise, terms such as “Party A will take Action X” mean that Party A is required to take Action X”; likewise, “Party B will not take Action Z” means that Party B is prohibited from taking Action Z.
If because of the nature of the relationship between the contract parties a will used in a contract is interpreted as not expressing an obligation, the lesson to take from that isn’t “The word will expresses an obligation, dammit!” Instead, figure out what you really want to say and how to say it in a way that precludes confusion. And more generally, if you can’t rely on your verb structures to convey the intended meaning, something’s amiss.
The only way to be sure that you’re using the right verb structures is to understand the semantics possibilities and how to use different verb structures to express them. That way, you limit reader confusion and, in particular, drafter confusion. That’s why I developed my categories-of-contract-language framework. It’s also why I use shall to express obligations imposed on a party who is the subject of the sentence—that allows me to use will and must to serve other functions. Using shall to serve this function is safe, as I explain above. And I can use the has a duty test to police my use of shall: if a given shall doesn’t pass the has a duty test, that tells me I’m dealing with something other than language of obligation.
The ghastly drafting made the interpretive question more difficult than it needed to be. I mean, a lawyer really has to go out of his or her way to mangle these three simple sentences.
The “wills”—at least on their face without considering extrinsic evidence—-don’t connote mandatory tenant obligations to the landlord. The sentences suggest that the sequence of events will happen in the future—nothing more.
If I had written it, I would have written something such as this:
The marina must issue catering tickets only to people entering the marina. To access the lake, they must redeem their tickets at the gate by paying the marina $1.00.
While some writers on contract drafting prefer “must” as a universal signifier of obligation, I think Ken’s solution is more elegant: “must” can express an indirect obligation in the sense that a third party (not someone who signed the contract) is obliged to do something in order for some obligation of a named party to have been met. A party to the contract itself is obligated using the verb “shall”; and that’s the only acceptable use of “shall.”
Yep. I understand your viewpoint and the logic behind it. Ken and I have debated this issue ad nauseam over the past few years. Let me ask you this question, though: if the drafter above had substituted “must” for “will” in the first sentence would this case have ever gotten to the TX Supreme Court? Doubtful. “Must” would have eliminated the ambiguity. The problem in the case was that the drafter used “will,” when he or she should have used “must” (or “shall”).
Here’s an important addition to what Vance says: The primary drawback to using must to express obligations is that I recommend using it in one of the three ways to express conditions. Using the same verb structure to express two crucially different meanings is a bad idea.
You think using must or shall would be an appropriate fix? That’s not what I’d do. I looked again at how the court described the catering-ticket business, and here’s how I would express it:
I could make it shorter and tweak it in various ways, but I see no reason to impose an obligation on the marina to issue tickets.
I’m not into playing what I call “verb-structure bingo,” where one attempts to address verb-structure needs by replacing will with shall or making some other such change. Instead, I focus on the semantics, pick a category of contract language, then opt for the verb structure associated with that category of contract language. Having distinct verb structures helps in that process.
And it’s probably a pedantic distinction, but I’m not debating you. I’m simply out there in the marketplace of ideas, explaining to anyone interested why my approach works and the shortcomings in other approaches.
(1) I agree with your analysis that no obligation should be placed on the Marina here to issue catering tickets. Strictly speaking, it doesn’t make sense to obligate the Marina to do so.
Just out of curiosity, how would the situation differ it we were to use “may” instead in your version? I’ve revised your rewrite, accordingly, below and look forward to your input:
“The Marina may issue catering tickets to visitors who surrender those tickets at the gate to the lake. In that case, the Water District shall grant those visitors access to the lake at no charge, and the Marina shall pay the Water District $1 for each catering ticket so surrendered that the Water District then presents to the Marina.”
(2) Regarding the D.C. Toedt comment above, I agree that he is missing the point regarding the use of “will” to convey an obligation. Furthermore, his assertion that “will not” is language of prohibition is also highly debatable. As we are aware, “will not” suffers from the same affliction as “may not,” namely, its meaning is unclear and open to interpretation.
With the former usage, does the drafter intend to convey future action or prohibition? With the latter usage, does the drafter intend to convey possibility, discretion, or obligation?
For those reasons, I would avoid both usages and opt for “shall not,” as suggested by you (Ken) in MSCD, and ensure that there is a consistent distinction between using (i) “shall/shall not” to convey direct obligation/prohibition, and (ii) “must” to convey indirect obligation throughout the relevant document.
While the entire work of the contracts guru has been a salutary sirocco over the gook, muck, mud, muskeg, ooze, slime, slop, and sludge of traditional contract language, perhaps his signature achievement is the ‘disciplined use of shall’.
Lest he think that too modest an accolade, consider that if a drafter applied only that one MSCD recommendation to a typical trad-con, lo! — what becomes clear at once is *the obligations of the parties*, which is much of what people read contracts to learn.
Here’s my 43-word go at the controversial provision:
‘The Water District shall grant fee-free access to the lake to visitors who surrender, at the gate to the lake, a Marina-issued catering ticket. For each surrendered ticket the District presents to the Marina, the Marina shall pay the District $1.’
I tried to find a concise formula that followed the chrono order ‘ticket issued, ticket surrendered, ticket redeemed’, but I couldn’t.