Don’t Vary Verb Structures Depending on the Party

In this comment to a recent post, a reader outlined steps they’ve taken to make their contracts simpler and clearer. For purposes of this post, what’s of interest is that those steps include the following:

… use “will” for our obligations and “shall” for the other party, …

This is only the second time I’ve encountered the notion of using different verb structures to convey the same meaning, depending on the party.

The only other exponent of this approach is Bryan Garner, in Garner’s Dictionary of Legal Usage, in which he says, “Indeed, it seems odd to draft one’s own contractual responsibilities with must … .” Here’s what I say about that in this 2011 post:

Second, I have yet to encounter a drafter of business contracts who distinguishes between words used to express obligations depending on whether the obligation is imposed on the drafter’s client or the other guy. That perspective is evident in the lease that Bryan discusses immediately after the quoted language, with the landlord’s obligations being expressed by we will and the tenant’s obligations being expressed by you must. That approach may work for consumer contracts, but it has no place in business contracts.

Given my reader’s comment, I thought it worth airing this issue again and advising that you resist the urge to adopt this approach.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.