Today I encountered shall never in a contract. I think it’s a form of rhetorical emphasis—you’re saying the same thing as shall not, but you’re also banging your shoe on the table. So I never say shall never.
About the author
Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.
4 thoughts on ““Shall Never””
I agree. A similar construction is “shall in no way.” It is also like “specifically agree” or “particularly agree” in that it opens the door for a party to claim that “shall never” must mean something different than “shall not,” so that a “shall not” provision may be violated in certain circumstances, while a “shall never” can never be violated.
I disagree with Tom Trotter. “Never” is merely a contracted form of “not ever.” (If I recall my Sweet’s Primer correctly, it’s descended from “ne aefre.”) “Specifically” and “particularly” are relative; “ever”–or, in any event, “not ever”–is not. It seems quite unlikely that using “shall not” and “shall never” interchangeably in a single document would give rise to the argument Tom outlines–unless, of course, the context of the document itself suggests some limited temporal frame that might plausibly be said to correspond to “shall not,” in juxtaposition to some perpetual temporal frame that might plausibly be said to correspond to “shall never.” Still, using “shall not” and “shall never” synonymously in a single document is inexcusably careless.
When you say it is rhetorical you are suggesting that they mean the same, but I can well imagine a contract in which the meanings are distinct.
For example, in an employment contract I might agree that I shall not engage in other work that competes with my employer and that I shall never reveal company secrets.
The first obligation ceases if I resign; the second obligation remains.
To be clear, I am not suggesting that is a good way to draft it, but the terms are logically distinct.
Mark: I think that the distinction you draw requires a semantic leap on the part of the reader, namely that “never” necessarily applies beyond the term of the agreement. Ken