In a LinkedIn post, I challenged readers to find for me a contract that used shall be or will be in creating an autonomous definition. I wasn’t surprised that I was the only entrant in that thrilling competition. I submitted the following example:
Using shall be in this context is as unhelpful as using is. That’s something I discuss in this 2021 blog post. (Using shall be has the added disadvantage of using will even though this is language of policy that applies the moment the contract is signed, and as such should use the simple present—but that’s the least of its problems.)
But in my rooting around, I saw another way shall be is used inappropriately in creating autonomous definitions. Here’s one example:
The phrase shall be construed is language of obligation, with the obligation in effect being imposed on courts. That’s a shaky proposition, as I discuss in my 2017 article in Judicature with Vice Chancellor Laster, When Contracts Seek to Preempt Judicial Discretion (here). Using means like a normal person avoids all that.
The same goes for this example, using shall be deemed:
