I recently received from a reader the following email bringing to my attention shall refrain:
Have you ever seen or written about a negative covenant written as “shall refrain from” instead of “shall not”? I see it today in an NDA from another party. It gives me some heartburn that the other party is obligated just to “refrain from” disclosing our client’s confidential information. The dictionary.com definition of refrain is “to abstain from an impulse to say or do something.” It sounds a little soft, a little too much like just trying. Am I being petty if I mark that up and send it back?
When someone asks you to refrain from doing something, the implication is that they’re relying on your self-control. It’s used in social contexts—Please refrain from picking a fight with your Uncle Roger. The consequences of failing to refrain from a given action in a social context presumably depend on exactly what the context is, and might be limited to mild disappointment.
You also see refrain used in less intimate contexts when it’s incumbent on the speaker to be polite—when, for example, someone is issuing instructions to customers. In this context, failing to exercise appropriate self-control can have unpleasant consequences. If a flight attendant asks you to please refrain from smoking and you do so anyway, you can expect a response that’s considerably more vigorous than mild disappointment.
For purposes of contracts, you’d likely have a hard time claiming that refrain expresses something less than outright prohibition. But why risk finding yourself having that discussion? When reviewing a contract, I’d have no hesitation changing shall refrain from to shall not, and that’s what I told the reader who posed the question.
And there’s no downside to omitting refrain from contracts. Because contracts are for articulating rules and have no voice, they’re not the place for namby-pamby deference of the sort exemplified by refrain.