I’ve learned that Twitter can serve as an early-warning system. Thanks to a Twitter update by Lance Goddard—he of the blog Are You Writing This Down—I learned that Jay Shepherd had posted on his blog The Client Revolution this item recommending that you run a mile from shall.
I took the liberty of posting this comment on Jay’s blog saying that for purposes of business contracts, I’ve concluded that using shall, as opposed to must or will, is the least-bad alternative. But that’s only the case if you use shall in a disciplined manner—in other words, use it only to impose an obligation on the subject of a sentence. I explain my position exhaustively—exhaustingly?—in chapter 2 of MSCD, as well as in this article. And I discuss shall in this November 2008 blog post and this June 2008 blog post.
Given that mastery of verb use is essential to control of your contract language, I expect this won’t be the last time I revisit shall.
5 thoughts on ““Shall”—Once More Unto the Breach”
I used to disagree with you on this. I experimented with both agrees to, must, and will. Ultimately, though I still dislike shall, I decided that using shall is better than the alternatives:
Agrees to is clunky if you have to add timing, place, or condition to the obligation. It becomes more difficult to add those kinds of clauses to the sentence without ambiguity and without confusing business readers.
Must is more useful in expressing conditions than obligations. Using it to express obligations sounds bossier than shall.
Will is more useful in expressing future events that are not obligations. I use it in regulatorily required certifications of future facts that are not contractual obligations. I also sometimes use it in background sections to explain future context.
So, I now use shall consistently.
I agree with you not to use “agrees to,” but for a different reason. Using “agrees to” throughout the contract is redundant, since the contract is the written expression of the parties’ agreement. Why continue to use it? You’ll find you can eliminate it every instance.
Suzanne: I actually agree with you regarding agrees to. You might be thinking of my analysis of agrees that. Ken
I am not a lawyer. I just stumbled across your site and am finding it extremely helpful as I am attempting to draft a terms of service agreement for a web-based company that I am preparing to launch. I am borrowing language from a variety of other websites' terms of service and using them as sources to create my own. (I am picturing you shuddering in horror after reading that last sentence.)
Would you mind commenting on how you might re-write this sentence that uses the word "shall"?
"Your willful provision of inaccurate or unreliable information shall constitute a material breach of these Terms and be a basis for termination of your right to use the Site."
It seems to me that the words "will", or "must" convey a slightly different meaning and that "shall" is more effective. Would the word "would" be acceptable?
Anthony: If you're using the second person, I recommend you not use "shall." For one thing, traditionally "shall" has been used to express obligation only in the third person. And using the second person is less formal, so you might as well make the entire contract less formal. (But I'm not crazy about using the second person for business contracts.)
But more to the point, your language doesn't constitute language of obligation; it's language of policy. (If you want to understand what that means, you'll have to read chapter 2 of my book!)
And "provision" is a "buried verb," in other words an abstract noun that you could replace with a verb; use a verb instead.
And why the heck would you use "Terms" and "Site" as a defined terms?
So I'd say something like "If you provide [Name] with inaccurate information, you will be in breach of these terms and [Name] we will be authorized to terminate your use of this site." (I used "will be authorized" rather than "may" because in this context "may" could be understood as meaning "might" rather than granting discretion.)
But you have a tough job ahead of you, as the language you're copying from is almost certain to be utter crap.