I’ve mostly given up policing what passes for the marketplace of ideas—it’s too chaotic. But occasionally the algorithm tells me I might as well say something about something. So now, I’ll offer my thoughts on this post, entitled Canceling the Word “Shall” in Leases, Contracts and Legal Forms, on the Holland & Knight Retail and Commercial Development and Leasing Blog. (This should perhaps be considered another in an occasional series. For example, who can forget this 2017 post about an anti-shall item on the website of the Federal Aviation Administration.)
We’re told in the Holland & Knight post that shall is used so prolifically that it creates confusion that can lead to litigation, so “canceling shall has already begun.” We’re told that we should replace shall everywhere, but that doing so would require a lot of work, so instead you could insert “global corrective language” saying that shall is “imperative and not permissive.”
You adjust your writing to suit the purpose and the intended reader. So sure, I’m on board with not using shall in, say, statutes. But I think it serves a purpose in contracts. Just because people overuse shall doesn’t mean you have to consign it to the dumpster. For purposes of my “categories of contract language” framework (see this 2018 blog post), shall gives me an extra tool to work with.
Overuse of shall is a symptom of a broader problem with traditional contract language—a random approach to verb structures. Switching out shall in favor of must or will won’t fix that. See for example this 2014 blog post with links to my analysis of a Google services agreement: not a single shall but still significant verb-structure dysfunction.
If you use shall just to express an obligation imposed on a party that’s the subject of a sentence (Acme shall purchase the Shares), you’re safe, because courts acknowledge that the foundational meaning of shall is to express that which is mandatory.
Telling people to purge their documents of shall seems unrealistic. After all, Bryan Garner has long warned us of the supposed perils of shall, but even Garner’s Modern English Usage (4th ed. 2016), at 825, says that “shall seems likely to persist” in legal documents. So not only does my use of shall offer the most rigorous way of keeping track of your verb structures, it’s also expedient. It allows me to tell shall addicts that they can keep using shall, just not all over the place.
As for the suggestion that we should put in all our documents something saying shall is imperative, that’s hopeless, given that the complaint is that shall is used to express different meanings.
We’re mostly all dwarfs, so it’s best if we stand on the shoulders of other dwarfs or, if they’re available, a giant. The authors of the Holland & Knight post didn’t feel the need to do that. The only authority they cite is a 2001 work by Bryan Garner. As research, that’s feeble. I wager it’s what the authors happened to have on hand.
And what the heck, in the past 20 years I’ve written more about shall than pretty much everyone else combined, and my stuff isn’t hard to find. There’s this blog post from only three months ago revisiting the shall wars and this 2014 article.
I appreciate the attractions of being anti-shall. It’s a straightforward position to take. Unfortunately, it doesn’t reflect the awkward realities of contract language. My track record is hardly that of a traditionalist dinosaur, yet here I am, advocating a nuanced approach to shall. And I’m hardly alone. For example, Alex Hamilton has said in this tweet that he agrees with my approach, and Neil Brown has said the same thing in this blog post. None of us is under any illusion that our use of shall is an optimal arrangement. Instead, it involves tradeoffs, but we’re OK with them.
This post isn’t really necessary—as I note in my blog post from three months ago, “the shall wars don’t generate the heat they once did.” But in the current dysfunctional, cacophonous marketplace of ideas, where every dope has a small megaphone, bad old ideas are somehow always new again, so repeating oneself is an occupational hazard.
What about “Alice is to pay Bob $X”?
Try teaching really old dogs that unorthodox new trick!
I used to be a “shall” avoider, but I’ve been using Ken’s approach to “shall” since the first edition of the MSCD. It’s worked. Ken’s right that the key is to use the verbs consistently. Using “shall” to impose the duty on the subject of the sentence frees up “will” and “must” for their own specialized use and helps maintain consistency.
One of the incidental but significant benefits of using “shall” in a disciplined way is that it forces you to read the whole document to, as a partner of mine used to say, pick the flyspeck out of the pepper (more commonly the other way around). In doing that, you’re likely to find many other defects in need of correction.
I have always thought that the disciplined use of *shall* is the most clarifying, hygienic, and useful contract suggestion Ken has ever made. It deserves frequent and proper praisings: shoulders of giants and all that, with Ken as giant.
To complain that contract drafters ‘overuse’ *shall* is like complaining that symphonies have ‘too many notes’. Taking on obligations is to contracts what musical notes are to symphonies — it’s largely what they’re for.
Drafters who use *shall* for any purpose other than signifying a party’s taking on an obligation (conditional or not) are not overusing *shall*, they are misusing *shall*.
I would tweak the ‘has a duty’ test of whether *shall* is properly used, substituting ‘is taking on a duty’ (because ‘has’ sounds as if it refers to a pre-existing duty rather than one that pops into being at the point the contract takes effect), but that quibble is nothing compared to the everyday improving power of the MSCD recommendation of the disciplined use of *shall*. Hail Ken!
Where’s my laurel wreath! :-)
‘If you’re resting on your laurels, you have them in the wrong place’.