I’ve recently become acquainted with a specialized form of contract language—architectural specifications, which are attached to construction contracts and define the requirements for products, materials, and workmanship on which the contract is based and requirements for project administration and performance.
Andrew is particularly energetic and innovative. He wants his model specifications to be clear and concise, and he decided that since specifications constitute a form of contract language, he should run his specifications by me. He found our discussions sufficiently helpful that I’m now on his advisory board. That’s the sort of ongoing involvement that law firms and company law departments might find useful—it’s amazing that the first business to take advantage of it is a small but feisty architectural-specifications firm.
Andrew introduced me to the Construction Specifications Institute and its Project Resource Manual, which, according to CSI, is the “authoritative resource for the organization, preparation, use and interpretation of construction documents.” The Project Resource Manual provides some guidance on language, and this bit of advice leapt out at me:
5.8.4 SENTENCE STRUCTURE
Two basic grammatical sentence moods can be used to clearly convey specification requirements:
• Imperative mood
• Indicative mood.
18.104.22.168 Imperative Mood: The imperative mood is the recommended method for instructions covering the installation of products and equipment. The verb that clearly defines the action becomes the first word in the sentence. The imperative sentence is concise and readily understandable.
• Spread adhesive with notched trowel.
• Install equipment plumb and level.
• Apply two coats of paint to each exposed surface.
22.214.171.124 Indicative Mood: The indicative mood, passive voice requires the use of shall in nearly every statement. This sentence structure can cause unnecessary wordiness and monotony.
• Adhesive shall be spread with notched trowel.
• Equipment shall be installed plumb and level.
• Two coats of paint shall be applied to each exposed surface.
This is the first time I’ve ever encountered anyone recommending that one use the imperative mood in contract language.
Here’s a bit background: A verb may be in one of three moods: the indicative mood, the imperative mood, and the subjunctive mood. (For our purposes, we can ignore the subjunctive.) The indicative mood is the most common and is used to express facts and opinions or to make inquiries; as a general matter, contract prose uses the indicative mood.
The imperative mood is used to instruct or request that someone do or not do something. The imperative is identical in form to the second-person indicative: Feed the dog. Don’t eat the pizza. Stop!
CSI’s recommendation that one use the imperative is evidently motivated by two factors:
- First, that using the active-voice indicative is too wordy, in that you’d have to say, with respect to obligations, Contractor shall.
- Second, that the passive-voice indicative is wordy and monotonous, in that it requires that one use shall constantly.
In the MSCD scheme of things one would use must to state obligations using the passive voice, to the extent that’s ever appropriate. But the approach CSI has adopted presents bigger problems:
Whose Obligations and Prohibitions? Stating obligations and prohibitions in the imperative mood is equivalent to using the second person—you. What happens if in the specifications you want to state obligations imposed on someone other than the contractor? (That happens when a nonparty that’s under the control of one or more parties is required to behave in a certain way.) You can’t have you apply to more than one person, so you’d have to use the indicative for any such additional obligations, and that would make for an odd mix.
What About Language of Discretion? Language of obligation and language of prohibition represent only two of the categories of contract language. What if you want to provide that the contractor may do, or isn’t required to do, certain things? You can’t accomplish that with the imperative. If a set of specifications were to use the imperative for obligations (Notify manufacturer’s representative to schedule a final inspection date) and prohibitions, then switch to the indicative for discretion (Contractor may use the following materials), it would read very oddly. To mask that, specifications tend to express discretion in the passive voice (The following materials may be included) or turn it into language of policy (Authorized materials include the following). That’s not ideal.
The Project Resource Manual is being inventive in relying on the imperative. If the language of specifications were more limited—if, for example, specifications consisted of a simple list of do’s and don’ts—that approach might work fine. But that approach falls short, because specifications constitute contract language, albeit of a slightly narrower sort than that used in construction contracts proper.
So I recommend sticking with the indicative mood, more particularly the MSCD categories of contract language.