Last week I was involved in the following exchange on Twitter with @ClearLanguage and @mrsalzwedel regarding—of course—shall:
@KonciseD @500wordlawyer @ClearLanguage: I read many contracts where the lawyer uses shall in 3-6 senses. Perhaps efficiency = just drop it?
— Matthew Salzwedel (@mrsalzwedel) May 8, 2014
I replied to Matthew that I’d answer his question on my blog, so here we go.
I’m not going to revisit at length the merits of using shall in contracts solely to impose an obligation on the subject of the sentence (assuming that the subject is party to the contract). That’s something I drone on about in MSCD; you get a taste of it in this 2011 post.
But the gist of it is that diagnosing the kind of meaning one is seeking to convey in a given sentence and the verb structure that’s appropriate for that meaning—a process for which I use the label “the categories of contract language”—is made much easier if you give shall that role. That frees up must and will to serve different functions; using either word to convey two meanings is a bad idea. And you can use the “has a duty” test to police your use of shall.
But you can expect that for the indefinite future most drafters will continue to drastically overuse shall. Is that reason enough to get rid of shall in contracts? For three reasons, I suggest that it isn’t.
First, a saving grace of contract drafting is that I don’t have to follow the herd. Instead, I can create my own universe, one that is clear and avoids risk. (Yes, even taking into account caselaw.) I don’t have to drink the Kool-Aid. I don’t have to join in some race to the bottom.
Second, based on my review of a few BigLaw Australian contracts that don’t use shall, as well as a Google services agreement that doesn’t use shall (see this post), I’ve concluded that eliminating shall gets rid of the most obvious symptom of category-of-contract-language dysfunction but doesn’t fix the broader problem—those contracts still exhibit muddled verb structures, with what should be conditions being expressed as obligations, and so on. I’m not into cosmetic fixes.
And third, perhaps shall can be rehabilitated. In that regard, I noted with interest the following extract from this account of the word flammable sent to me by the perspicacious A. Wright Burke, who said that it brought to mind my campaign for disciplined use of shall:
From the beginning of the twentieth century the potential confusion [between non-flammable and inflammable] started to worry American safety experts and insurance companies. Under their urging, flammable had begun to appear in safety advice and local bylaws in the first decade of the century but it was then a technical term unknown to the wider public. In 1920, they ran a campaign to try to change the language. This notice appeared widely in technical journals:
The National Safety Council, The National Fire Protection Association, and similar organizations have set out to discourage the use of the word “inflammable” and to encourage the use of the word “flammable” instead. The reason for this change is that the meaning of “inflammable” has so often been misinterpreted.
It was convenient that these bodies had words with which to replace the potentially disastrous ones. Flammable had been created early in the nineteenth century from the same Latin verb flammāre, to set on fire, that’s also the source of inflammable; flammability had appeared two centuries earlier still. Though they had never caught on, they were available to be resurrected [this last bit of emphasis supplied by A. Wright Burke].
Time will tell whether my championing of disciplined use of shall makes a dent in the marketplace of ideas. But I’ve seen some promising signs. For example, at the recent ReInvent Law conference in New York, I found myself sitting behind a group of knowledge-management people from Canadian law firms. The first thing one of them said to me, even before “Hi,” was “Thank you for making shall safe to use again!”
I’m with you on this. The word “shall” is a perfectly serviceable word.
The problem isn’t the word “shall.” The problem is that drafters think that the word “shall” is a magic word to make things happen. They think they can say “A quorum shall exist,” and poof a quorum is mandated. Simply replacing the word “shall” with the word “must” or the phrase “is required” doesn’t solve the problem. Neither “a quorum must exist” nor “a quorum is required to exist” solves the problem. A revision might read “Acts of the board are void unless a quorum votes on the action.” The problem is that the drafter hasn’t clearly thought about what happens when there’s not a quorum. The cause is muddled thinking.
After I published an article about lawyers misusing “shall,” a drafter called me to ask about replacing “shall” with “must,” but after talking with him, I realized that the problem wasn’t the word “shall.” The problem was that everyone agreed that a certain thing needed to happen, but that nobody had agreed on what would happen if it didn’t. I told him they need to hash that out. Once he had that figured out, writing the provision wouldn’t seem like a conundrum.
I’m with you on this too. Last year I gave a talk on contract drafting at the EULETA (European Legal English Teachers’ Association) workshop in the Netherlands. I explained that in one of my client’s contracts, the words “commits to”, “agrees to” and “will” were used in three consecutive clauses to introduce an obligation. I suggested that the client use consistent language throughout the contract to express an obligation, for
example, by using the word “shall” for each covenant.
This created some debate in the room, with some attendees clearly objecting to the use of the word “shall”. I was not trying to advocate the willy-nilly use of shall in contract drafting, but was trying to explain that, if it was consistently used to impose obligations in the contract, it would add clarity.
Dear Ken:
I have followed this debate over “shall” closely. I think you have a strong point, but my love for Garner makes me have an existential crisis whenever I type the word “shall.”
Now I have two questions about “shall” that I don’t think you have answered yet. I am curious to know what you think about them.
1.In chapter 2 of a MSCD, you basically created a system of contract language that leaves little room for ambiguity. I think it’s quite wonderful, but one problem I see is that you can’t really force the opposing party or judges to adopt your system.
I see one possible solution to this problem, but I have not heard you or anyone address it. Do you see any point in drafting a contract where the “definitions” section defines the language terms?
For example, the contract could define “shall” as meaning “has a duty to take a given action. “May” could be defined as meaning “a party has the discretion to take or not take a given action.” And by expressly defining these terms, no one can dispute their meaning.
Of course, this doesn’t change the fact that drafter still has the burden of making sure that “shall” is correctly used, but wouldn’t this approach get any rid of any ambiguity over the terms and force? What
are your thoughts? Is it simply overkill?
2. The dispute over “shall” v. “must” v. “will” involves many different viewpoints. From what I gather, you seem to argue that “shall”—when used correctly—is more precise than the other two terms. Garner and the Plain English folks seem to take the position that: (1) not many lawyers use “shall” correctly; and (2) “shall” just sounds stuffy to the modern ears.
But one argument that I never heard is simply using the phrase “has a duty to.” So instead of “Seller X shall/must/will deliver 20 widgets to Buyer Y,” you have “Seller X has a duty to deliver 20 widgets to Buyer Y.”
It adds few extra words, but it does seem to avoid most of the issues surrounding the debate such as precision and stuffiness. We could take a similar approach the other terms as well (e.g. may).
Now I have not thoroughly thought about this idea since it just came up while reading your blog. One obvious problem is that the contract will get longer. Further, we run into the problem of using four words when one word will do. At the same time, my intuition tells me that simply using the phrase “has a duty to” could remove all ambiguities and concerns over stuffiness.
Any thoughts?
Chris: Check out MSCD 15.18 and 15.19: they discuss the sort of “provision specifying drafting conventions” that you have in mind. I have two problems with this sort of provision. First, if your words can’t be understood on their own, that’s a problem. And second, that sort of provision won’t help if drafters can’t use their verbs in a way that’s inconsistent with the provision.
You’re right about “has a duty,” but I’m reluctant to advocate using it. It’s not that I’m worried about adding extra words. Instead, it’s that unless there’s no alternative, I’m reluctant to suggest that people adopt entirely new usages. I think that the path of least resistance is to propose that people continue to use “shall,” but in a disciplined way. And that happens also to be the most rigorous approach.
You’ll be thrilled to hear that in a couple of months I’ll be unleashing another “shall” article on an unsuspecting world!
Ken