The current issue of The Australian Corporate Lawyer—the journal of the Australian Corporate Lawyers Association—contains my article Banishing Shall from Business Contracts: Throwing the Baby Out with the Bathwater (PDF copy here).
What it has to say won’t come as a surprise to regular readers of this blog, but I expect that it will come as a surprise to plenty of people in Australia, stronghold of the anti-shall forces.
This is just one of a number of articles I’ve written for periodicals outside the U.S. In part, that’s my way of emphasizing my commitment to an international perspective. I also want to remind folk that I’ll be back in Australia in February 2015 to give more “Drafting Clearer Contracts” seminars under the auspices of Melbourne Law School. I’ll have more specific information about that before too long.
Ken: You’ve written elsewhere that you spoke with Bryan Garner about “shall” and that he is an anti-shall absolutist. Did he raise any counterarguments against your stance?
I haven’t encountered a serious rebuttal by Garner or anyone else. I’m not sure that one is possible, because ultimately, it’s a matter of priorities. What’s more important, that you make contracts seem more accessible, or that you handle your categories of contract language rigorously? Put me in the latter camp.
Hi there! I read your text about Banishing Shall from Business Contracts and there are some questions that I came across with like the part about the alternative. Essentially what is the difference between Shall and Will and its legal context?
I’m afraid that’s difficult to answer in a blog comment. I use will only in language of policy relating to contingent future events. For what that means in practice, your best bet would be to consult MSCD.
Ken,
Let me begin by thanking you for your hefty contributions to clear transactional drafting. They have certainly been invaluable to my own practice.
That said, I must disagree with your argument that “shall” has a place in modern contract drafting. It’s a slippery, archaic and by now alien word that is often, if not typically, misused. As Garner explains in Black’s Law Dictionary, “shall” has acquired through use and abuse a range of meanings, from “has a duty,” to “should,” “must,” “may,” “is entitled to,” or “will.” The volumes of contract language quoted in Georgia case law (which is pertinent to my practice) appear to confirm this view, as does your frequent forays against the nebulous horrors lurking in the Edgar filings. For these reasons I believe the uniform banishment of “shall” from its last bastion within the American legal profession is preferable, if not necessary.
I understand your point on ensuring the limited deployment of “shall” to unambiguously state an obligation. But that seems a bit of the “magic-wordery” approach you so often decry; i.e., “The act of treating certain words as magic words for purposes of contract interpretation.” Kenneth Adams, Defining “magic words” and related terminology, Adams on Contract Drafting (Apr. 13, 2010), available at (accessed Oct. 2, 2015).
Since modern American English has perfectly fine words to convey an obligation, like “will” and “must”–especially when read within the context presented–“shall” seems only to introduce yet another thing to track and correct, with limited payoff for the effort. See e.g., O.C.G.A. § 13-2-2 (mandating context, the entirety of an agreement, and grammar as essential to contract construction). For example, if a contract says “Manufacturer will be solely responsible for the procurement, installation, testing and maintenance of all equipment,” I don’t understand how “shall” would make that obligation any clearer or more certain? And that being so, then surely “shall” is better left out given its pressing, underlying issues?
I follow your point on “will” indicating “future time.” But just like “shall,” grammatically, “will” can quite happily play the role of a modal in stating an order or obligation. (Conversely, when used in the first person especially, “shall” actually indicates futurity). Like everything in language, whether “will” is a modal depends on context. (“The Parties will submit all disputes, claims and controversies to the exclusive jurisdiction of the courts of the State of Georgia” (modal) versus “The Parties will adjourn the meeting to next Thursday” (futurity, and perhaps modal depending on context, which in contracts I actually think helps in outlining obligations that occur after the satisfaction of conditions precedent)).
I fail, therefore, to understand how a subtlety of distinction between “shall” and “will,” based on some uncertain, hypothetical concern for futurity is particularly relevant in the fight against confusion and ambiguity. (As it is, and assuming a lowest common denominator, I include in my contracts that “Unless sooner terminated in accordance with Article __, this Agreement and each of its provisions is effective and enforceable from the Effective Date and for the Term.”) I certainly haven’t found any court to be particularly receptive to hyper-technical arguments on language unless absolutely forced to it–which is typically the product of severely defective drafting in the first instance, which “shall” does nothing to fix. See e.g., King v. Burwell, 576 U.S. ___ (2015) (determining what Congress meant by “State” under the Affordable Care Act); see also e.g., Nat’l Fed’n of Indep. Businesses v. Sebelius, 576 U.S. ___ (2012) (finding “penalty” to mean “tax” within the context of the Affordable Care Act’s individual mandate).
“Shall” is thus a complication that offers little even when utilized correctly; is archaic and alien to the modern user, even if trained in drafting and language; is favored by lawyers as a peculiar hallmark of the profession, along with other would-be Shakespearean flotsam and jetsam; is vital with presumed, hypothetical meanings and supposed powers; and most importantly, is poorly understood and in general practice misused when unleashed on clients, at times rendering their contracts less intelligible than they might otherwise have been.
I agree that the significant problems confronting modern contract drafting won’t be fixed by simply removing a word. After all, is there ever an instance where magic-wordery and its wicked effects are cured by simply reversing the incantation? Your terrific advice on indemnification clauses very much augers against that view. But, where the offending word is nothing more than the core of the thicket, with little to contribute to betterment of the whole even if appropriately hedged and pruned, is it not better to simply uproot the whole thing and plant something better?
Best regards,
Simon
Simon: This isn’t an area susceptible to right and wrong. Instead, it requires a judgment call. I continue to be comfortable with my position on shall. I can’t state it more clearly than I did in the article that prompted this post, and I won’t try to. But I’ll summarize it:
First, the evils of shall have been overstated. For purposes of contracts, shall is vastly overused, but that’s mostly a nuisance rather than something that can lead to fights. What does lead to fights—for example, confusion between obligations and conditions—wouldn’t be fixed by banishing shall.
Second, for purposes of stating obligations, shall is a safe choice.
Third, more pernicious to my mind than giving a greater role to a word that is of uncertain significance in everyday English is the practice of using one verb structure to express two different meanings. That’s what happens if you use will to express obligations and futurity. That’s to the detriment of the drafter, because it muddies the difference between categories of contract language. Sure, will works fine to express obligations when you consider it context by context, but that’s not what I’m concerned about.
And fourth, policing my recommended use of shall is simple: does it pass the “has a duty” test?
Ken