I’ve stated elsewhere (for example, in this 2014 article) the advantages of using shall to express an obligation imposed on the subject of a sentence, if the subject is a party to the contract.
The primary advantage is that shall gives you an extra tool to work with. Instead of using will or must to express multiple meanings, you use shall to express obligations imposed on the subject of the sentence and use will and must for other categories of contract language. That helps you figure out what meaning you wish to express in a given context.
But one of the ancillary advantages is that using shall to express obligations is safe, despite fearmongering to the contrary. (See MSCD 3.60–.61.) For purposes of contracts, court consider that expressing obligations is the foundation meaning of shall.
Recently I encountered an opinion in which a court expressed in a novel way the notion that shall serves to express that which is mandatory. In Vandertoll v. Kentucky, 110 S.W.3d 789, 791 (Ky. 2003) (here), statutory text was at issue. Here’s what the court said:
We will not commence a lengthy discussion on the definition of “shall.” KRS 446.080(4) states that “[a]ll words and phrases shall be construed according to the common and approved usage of language ….” “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and … must be given a compulsory meaning.” Black’s Law Dictionary 1233 (5th ed.1979). “If the words of the statute are plain and unambiguous, the statute must be applied to those terms without resort to any construction or interpretation.” Terhune v. Commonwealth, Ky.App., 907 S.W.2d 779, 782 (1995) (quoting Kentucky Unemployment Insurance Commission v. Kaco Unemployment Insurance Fund, Inc., Ky.App., 793 S.W.2d 845, 847 (1990)). Shall means shall.
So “shall means shall.” That effectively conveys the impression that the meaning of shall isn’t even worth discussing.
When it comes to the language of statutes, things aren’t so clear cut, because for purposes of statutes there’s the notion that shall can mean “should” (that concept is referred to as the “discretionary” shall.) So perhaps the court in Vandertoll shouldn’t have been so sanguine.
But that court isn’t alone—a search on Westlaw uncovered 102 cases in which the phrase “shall means shall” occurs. So it can be regarded as an oddity that stands for the proposition that courts think that expressing that which is mandatory is the foundation meaning of shall.
Of course, in contracts nothing is certain. See for example this blog post, about how a court held, anomalously, that in a contract dispute a given shall was a discretionary shall. But if you want certainty, don’t do contracts.
Ken:
Remember the old ad?
This is your brain. [Picture of an egg.]
This is your brain on contracts. [Picture of the egg frying in a pan.]
Don’t do contracts,
Chris
*struggles in straitjacket*
Will you permit six short meditations on *shall*?
1/ Kudos to you as the savior of *shall* for useful work in contracts. The ‘disciplined use of *shall*’ should be renamed ‘the MSCD use of *shall*’.
2/ *Shall* is in a sense passive in that it has an unstated by-agent: Acme ‘has a duty’ from what source? Some candidates are: (a) part of the contract; (b) the entire contract; (c) the party assuming the duty (self-imposed duty); (d) one or more other parties; (e) one or more nonparties; and (f) background law.
If one is strict about avoiding anthropomorphosis, nonpersons a, b, and f are out.
It’s hard to imagine a fact pattern where stating who or what imposes a contract obligor’s duty would matter. The desirable *shall* formula lets the issue lurk harmlessly unresolved in the shadows. What matters doesn’t depend on the answer — the identities of the obligors and obligees and the consequences of noncompliance.
3/ *Shall* is performative to the extent that it is a perfect synonym for ‘hereby takes on a duty to’; it alters legal relations just as ‘hereby grants Acme discretion’ does.
4/ *Shall* ‘speaks’ as of the moment of contract formation, even if performance of the duty is future and conditional: ‘If Cockaigne and Ruritania go to war with each other, Acme shall pay Widgetco £5 more per Widget’. Acme’s conditional duty comes into existence at signing.
5/ Verbs that speak as of the instant of contract formation should be consistent. So (perhaps?) ‘Widgetco hereby grants a licence’, ‘Acme does not hereby assume the excluded liabilities’, ‘each party signs this agreement on the date by each signer’s name’. As an uninflected modal auxiliary, ‘shall’ neatly dodges this issue. (So does ‘may’.)
6/ ‘Shall’ is sometimes said to have a ‘mandatory’ and a separate ‘directory’ sense, the latter aiming at good order, as in ‘applications under this section shall be stapled once in the upper left corner’.
I think it makes more sense to say that ‘shall’ is always mandatory, but the consequences of noncompliance with a given mandate can vary from nothing to enormous.
Wright:
Wow, this comment (especially #2) took me back to an undergrad course that studied the basis of contract law among other things: natural law, consent, modern (typically expectation based) theory, and (my personal favorite) Rothbardian title transfer.
Chris
I’m with you on the disciplined use of “shall” in contracts. Use it as the equivalent of “has a duty to” and when the subject of the sentence is a party to the contract. As for an occasional court opinion that treats “shall” as “should”….well, okay, I’m not going to let that change my practice, either.
But as you say, things get a bit fuzzier in statutes, even in well drafted statutes. For one thing, the “subject is a party test” doesn’t work. For another, statutes often use “shall” in passive voice, e.g., “Articles of incorporation shall be filed with the Secretary of State….”
Speaking of articles of incorporation, how do you feel about “shall” in the context of articles of incorporation, bylaws, and other governance documents? At a minimum, the “subject is a party” test needs to be tweaked a bit because, again, there really are no parties to articles and bylaws. Beyond that, what are your thoughts?
Ken,
I have been pushing your rules about shall and must since I started drafting contracts. Recently, a colleague said that we should use must exclusively. He pointed to the following link to bolster his case:
https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/
I wanted to point it out for your opinion.
Thanks
Thanks for bringing this to my attention. Here’s what I think of it: https://www.adamsdrafting.com/another-squirmish-in-the-shall-wars/
This is not very clear for a legal topic about contracts.
Shall=recommended
Must-required