Earlier this week I received the following message and photo from Karen Belair, of Union Pacific Railroad’s law department:
I just wanted follow up and let you know what an indelible impression you left on our department since the Drafting Clearer Contracts seminar at Union Pacific last fall. If nothing else, you have made many of us stop and think before we write, not only contracts, but communications as well. The proper use of the word “shall” comes up all the time, and is always one of those things I look for when reviewing a contract or a letter. With that in mind, I had a good laugh the other day when I went swimming at a friend’s apartment pool. There on the fence was a sign which instantly made me think of you, so I had to share. I hope you get a chuckle out of this as well.
In addition to the gratifying seminar feedback, I love the “shall” photo. It’s a great reminder that just as everyday English isn’t suited to expressing contract obligations, language used to express contract or statutory obligations isn’t suited to everyday English.
And here’s another wrinkle. “No one shall swim alone” is analogous to “No party shall swim alone.” Here’s what MSCD 2.152 has to say about that:
When the subject of a sentence is a collective noun such as stockholders, you can convey prohibition by rendering negative either the verb or the subject: the prohibitory equivalent of Stockholders may transfer their Shares isn’t only Stockholders shall not transfer their Shares but also No Stockholder may [or shall] transfer its Shares. Both may and shall are appropriate in this context, but it would be preferable to use may, as this use of shall would fault the has a duty test; see 2.26.
But how’s this for an idea: Negating the verb rather than the noun makes for easier reading. In other words, Stockholders shall not transfer their Shares works better than the version with No Stockholder. The negated-verb version of our sign would be “One shall not swim alone.” Except for the small problem that the original version is preposterous.
By the way, what should the sign have said? It’s hard to know what “alone” was meant to express. That someone else has to be in the pool with you? On the pool premises with you? And do you have to know the other person, or would the presence of any other person be sufficient? Here’s my attempt: “No swimming allowed unless at least one other person is in the pool or poolside.” Yes, I’m available for signage consulting …