[Updated March 2, 2015: For my most recent take on this subject, see this article.]
I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article.
But it’s such a fundamental topic that it bears revisiting periodically, so I’ll share with you emails that I exchanged over the past few days with John Gillies and Kathleen Hogan, practice support lawyers at the Toronto law firm Cassels Brock.
Here’s an email I received from Kathleen:
I believe you’ve conducted drafting seminars here at Cassels Brock, though before I arrived in a KM capacity in August.
We’ve just released a Boilerplate Agreement to the firm. In compiling it, we of course relied on MSCD. We’ve gotten mostly good feedback.
However, your recent post about letting you know where we disagree with you has sparked this contact.
There’s been some discussion about our adoption of your analysis of using “shall” to create an obligation. One alternative favored is using “will,” on the grounds that “shall” is archaic. Can you comment?
I am not sure I agree that “will” is any different from “shall” in referring to future time. Doesn’t “shall” necessarily mean “in the future”? If the drafter does not mean in the future, then wouldn’t he or she use an active present tense?
Thoughts appreciated. Thanks.
And here’s my reply:
Kathleen: Thank you for your message. This subject remains dear to my heart.
It’s clear that shall has largely disappeared from everyday English; its role is now mostly limited to questions in the first person that seek direction or suggest weakly, such as Shall we dance?
But dwindling use of shall in everyday English has little bearing on how it’s used in business contracts. A given population—including the corporate bar—will develop the syntax that fits its requirements. Those requirements would likely differ from the needs of other populations, with a distinctive syntax being the result.
In business contracts, the problem is overuse of shall—it isn’t going anywhere soon. So I suggest that rather than simply dismissing shall out of hand as being archaic, it would be more productive to consider the pros and cons of retaining shall or dispensing with it, taking into account the distinctive characteristics and function of business contracts.
In that regard, nothing would be gained by eliminating shall. For one thing, shall poses no real risk. Most of the litigation involving shall involves the language of statutes, not contracts. (Statutory interpretation is burdened with the discretionary shall, meaning “should”—that’s something that mercifully doesn’t apply to contracts.)
And replacing shall with will (the most plausible candidate) would result in drafters using will to express both obligations and futurity. Use of one word to express different meanings is precisely what currently afflicts use of shall, so you’d in effect be replacing one form of overuse with another.
But a more fundamental problem with seeking to banish shall is that it misses the real issue, which is that drafters have a poor grasp of how to use verbs to construct the different categories of contract language. Overuse of shall is merely a symptom of the disease. Banishing shall may help mask the symptom, but it does nothing to cure the disease.
The best way to put verb use on a coherent footing would be to establish a clear framework, with different words being used to articulate different meanings. In that regard, shall has a valuable role to play. I recommend using it to impose an obligation on the subject of the sentence, as in Acme shall purchase the Shares. The initial test for disciplined use of shall is whether you can in your mind replace it with “has [or have] a duty to.” This simple test goes a long way towards restraining overuse of shall.
Other words serve different functions. I recommend using must to impose an obligation on someone other than the subject of the sentence (one should have little call to use must in this manner). It also plays a co-starring role in one of the ways to express conditions. I recommend using will only in language of policy relating to a contingent future event, as in This agreement will terminate upon the closing of a Qualified IPO.
The framework I recommend is consistent with standard English, but for the prevalence of shall. As explained above, that doesn’t bother me. Business contracts between sophisticated parties use a language that’s stylized and limited. It shouldn’t be disconcerting that in this context a word of otherwise limited utility—shall—has come to serve a useful function.
And aside from the fact that shall serves a useful function, it’s firmly entrenched in transactional circles. At any given time some lawyers, or entire organizations, might eschew shall, but there’s no sign of any wholesale flight from shall. One hears claims otherwise, but my inquiries suggest that such claims are suspect. See, for example, this blog post.
And just yesterday, a participant at one of my seminars mentioned how she had heard one of her firm’s clients touted by a speaker as an example of a company that had banished use of shall. She subsequently asked lawyers at the company whether that was the case; they said that it most certainly was not. That didn’t come as a surprise to me.
This explanation represents a synopsis of the analysis in chapter 2 of MSCD. I’m entirely comfortable with my recommendations. Abandoning shall is a quick fix that fixes little and misses the bigger problem.
Here’s where John waded in:
Reading this discussion back and forth between you two has allowed me to put my finger on something that I had not previously been able to identify precisely.
One positive benefit of the “plain language movement” is that more and more people are aware of, and becoming impatient with, archaic language. They identify several hallmarks of plain language, including for example the use of “witnesseth,” “heretofore” and similar words in a document. I think part of the reason is that most of the archaic legalisms are terms that are no longer part of the written language that one encounters on a regular basis.
Accordingly, if one uses one of these archaisms, the more “enlightened” users will laugh derisively at the drafter’s failure to use plainer language. But also lumped in with that is the use of “shall.” One rarely encounters it outside of Shakespeare and, therefore, if one does use the term, one risks being seen as failing to have fully adopted plain language drafting.
It is somewhat like the evolution of the language where words that formerly had one meaning over time acquire a different meaning (e.g., “hoi polloi” or “presently”). Another, and perhaps better, analogy would be those who overcorrect and say, for example, “She gave the book to David and I.” The correct usage has given way to the widespread adoption of the improper usage. The proper construction is rarely used, and when it is used, is seen by the majority to be incorrect.
So, here, it may well be that using “shall” allows a precision in language that other formulations don’t, but one runs the risk of being tarred with failing to have adopted plain language drafting.
Microsoft had no compunction about using the phrase, “Think different” for its products (and, indeed, I saw in today’s paper that that slogan has been identified as one of the top 10 marketing slogan of the last 60 years), in large part because that usage reflects the usage of a large segment of the North American population. The Marketing people presumably responded to the internal critics by saying something like, “Who cares if it’s not ‘good’ grammar? It’s a great slogan!”
We can’t abstract from the discussion that, in preparing any document, we’re also engaged in a marketing operation. So if the use of “shall” in our documents ends up with our being painted as “stuffy and stodgy,” then like it or not, that’s something we need to take account of.
I don’t think I’m saying that we should have the Marketing department draft all our agreements (God forbid!), but it is something that has to be acknowledged.
And I had the last word:
John: Your point is a valid one—I’m all for embracing standard usage.
I won’t repeat my arguments for why disciplined use of shall is, in semantic terms, preferable to using must or will. The only question is whether that benefit outweighs the downside to giving a central role to a word that has largely fallen by the wayside in everyday English.
For purposes of mainstream drafting, I don’t think there is a downside, given that the corporate bar grossly overuses shall. As I’ve noted, some lawyers, and even some organizations, might eschew shall, but thus far that position has had a negligible impact. That means that in addition to presenting semantic benefits, sticking with shall represents a pragmatic choice.
For purposes of contract drafting, is shall necessarily doomed? The language of contracts is slow to change, so in any event I would expect shall to be a major feature for the indefinite future. And because I find shall to be more efficient than the alternatives, I’ll do my best to help ensure that it survives. Reference works have a way of helping to mold usage; perhaps MSCD will help to rehabilitate shall in the minds of those who are skittish about using it, even in a disciplined way.