The other day, Alex Hamilton dropped this on Twitter:
Using "shall" in contracts, as suggested by @AdamsDrafting, has become a shibboleth.
There are those who want to be modern, and those who've done their homework and are actually being modern.
— Alex Hamilton (@AlexHamiltonRad) March 10, 2021
It’s been years since I’ve written anything about use of shall in contracts. For those wondering about my take, here’s a summary (in enumerated points to emphasize the series of decisions involved):
- In traditional contract drafting, the verb structures are chaotic.
- As an antidote to the chaos, I devised “the categories of contract language.” Every main clause in a contract falls into one of the categories, and different verb structures are associated with the different categories. For my “quick reference” chart of the categories of contract language, see this 2018 blog post.
- I use shall to impose a duty on a the subject of the sentence, if it’s a party to the contract. To test use of shall, I recommend doing the “has a duty” test; see this 2020 blog post for more about that.
- I use must as one way to express a condition and to show how the parties intend for a nonparty to act (plus one other function); and I use will in language of policy that relates to a contingent future event. The details of must and will don’t matter for these purposes; the main point is my limited use of shall.
- Clearly distinguishing between shall, must, and will in this manner makes it easier to distinguish between the categories of contract language. If shall didn’t exist, I’d want to invent it.
- This use of shall is safe: courts acknowledge that the foundational meaning of shall is to express that which is mandatory.
- This use of shall is expedient: in most jurisdictions, drafters tend to be too fond of shall, so there’s no obstacle to continued, albeit more disciplined and limited, use of shall.
- One objection to this limited use of shall is that shall is so problematic that the only solution is purging it entirely. For most jurisdictions, this is unrealistic, and it ignores that there are tradeoffs (see point 13).
- Another objection is that shall is not used in everyday English as often as it was. In North America, it occurs in stock expressions (such as We shall overcome) and in politely suggestions question (such as Shall we dance?), and that’s it. And the ostensible “rule” in England on when to use shall and when to use will is preposterous, so I don’t lament that use of shall has dwindled.
- But everyday English isn’t ideal for expressing contract obligations, so I’m at peace with giving shall a specialized role in contracts that it doesn’t have in everyday English. Any benefit to matching for purposes of contracts the limited role of shall in everyday English is more than offset by points 5, 6, and 7.
- And using must as an alternative to shall has its drawbacks: It results in using must to express very different meanings. And many drafters apparently find must too pushy.
- Using will as an alternative to shall has its drawbacks too. It results in using will to express very different meanings. And in standard English, will is used to express mandatory behavior in limited contexts (You will eat your spinach!).
- So using or not using shall in the manner I recommend involves tradeoffs. I’m comfortable with my choice.
- In my experience, many, or most, individuals and organizations that have purged their contracts of shall have done so without considering the implications and without considering the broader issue of dysfunctional verb structures in contracts generally. For an example of that, see this 2014 blog post about a Google contract that doesn’t use shall but has no shortage of verb-structure dysfunction. This is the point Alex makes in his tweet. For many, getting rid of shall is a glib modernity play that isn’t so clear-cut when you think it through.
- Individuals, organizations, and even broad swaths of the legal profession (in Australia) might have turned their back on shall. My aim isn’t to get them to change their mind; I just recommend that they acknowledge the tradeoffs.
- But organizations the spurned shall might find themselves using shall again when personnel change. I recall that more than 20 years ago Bryan Garner announced at a seminar I attended that a major US company had banned shall from its contracts. Soon after, that company became one of my clients, so I asked them about the ban. No one knew what I was referring to.
- And individuals might change their mind. This is from Neil Brown’s recent blog post about my Masterclass course: “One the main habits I intend to reverse as a result of the course is my former preference for ‘must’ over ‘shall’. I felt that ‘shall’ was anachronistic and unnecessarily formal. I still kind of think that — I’m not fully convinced. But I see the benefit of using ‘shall’, from the perspective of certainty, so I expect to use it when I intend the contract to impose an obligation on someone.”
There you have it. If you want more, there’s this 2014 article, and there’s what’s in MSCD.
Now back to Alex’s tweet. It caused a brief flurry, then everyone moved on. I’m not surprised—the shall wars don’t generate the heat they once did. Even Garner’s Modern English Usage (4th ed. 2016), at 825, says that “shall seems likely to persist” in legal documents.
Bonus: Want to know more about shibboleth? Here again is Alex:
— Alex Hamilton (@AlexHamiltonRad) March 10, 2021