“Will” Versus “Shall” Is Only Part of the Story

Yes, it’s time to return to the shall wars.

Thanks to the article by Lori Johnson that I discuss in this post, I’d now like to consider a court opinion that I overlooked when it first appeared. I’m referring to Lubbock County Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297 (Tex. 2014) (PDF here).

The Court Opinion

This case involved a dispute between the commercial tenant of a marina, Church & Akin, and its landlord, a county water control and improvement district. The tenant sued for breach of contract, and the landlord pleaded governmental immunity. The tenant in turn claimed that immunity had been waived in accordance with a statute granting a limited waiver for contracts that state “the essential terms of the agreement for providing goods or services to the local governmental entity.” The trial court denied the landlord’s plea, and the court of appeals affirmed, but the Texas Supreme Court reversed.

Part of the argument over whether the waiver applied involved the following from the contract between the tenant and the landlord:

The marina will issue catering tickets that will be redeemed at the gate for admittance to the lake. These tickets will be redeemed by the marina at the price of $1.00 each. They will only be available to persons coming into the marina.

The tenant argued that this provision required the tenant to provide a service to the landlord by issuing catering tickets. The court disagreed, concluding that “the purpose of the catering tickets was to benefit Church & Akin’s marina business.” It went on as follows:

[W]e read this provision of the agreement as the parties’ acknowledgement that Church & Akin intended to and could issue marina tickets for the benefit of its business, not as agreement to issue such tickets as a service to the Water District.

The dissent disagreed:

The ticketing clause requires Church & Akin to use the premises. In mandatory language, the clause demands that Church & Akin will issue the tickets.

The Broader Context

We can draw two lessons from the Lubbock opinion.

There’s a narrow lesson: if you’re looking to limit the chance that something you want to be interpreted as an obligation is instead interpreted as a condition, your best bet is shall. In Lubbock, the court considered something expressed using will and in effect decided that it expressed a condition. By contrast, when courts are asked to decide whether language using shall expresses an obligation or a condition, it’s likely that they’ll conclude that it expresses an obligation. (See MSCD 3.266–.67 for more about that.) This shouldn’t come as a surprise. Although shall is drastically overused, its core function is expressing obligations. By contrast, if you use will not only to refer to the future but also to express obligations, you’re repurposing it to serve a function that it doesn’t usually serve.

But there’s a broader lesson: overuse of shall isn’t a source of verb-structure confusion, it’s a symptom. Lubbock shows that getting rid of shall in favor of will has no bearing on confusion over whether something expresses an obligation or a condition. The Lubbock court, sensibly enough, wasn’t fixated on verb structures. Instead, it explored the business realities of the relationship between the landlord, the tenant, and customers of the marina. I suggest that it would have made sense to have the provision at issue begin as follows: “If the marina issues catering tickets …” That’s consistent with the court reading this provision as saying that the tenant could issue marina tickets.

It follows that I don’t agree with Lori Johnson’s assertion that the Lubbock opinion “creates a strong uncertainty as to whether Garner’s preferred method of obligating parties to act is enforceable in a Texas court.” The issue wasn’t will versus shall. (For my thoughts on Bryan Garner’s recommendation that one use will to express obligations, see this 2011 post.)

It also follows that I think D.C. Toedt is missing the point in saying in this post that because of this court opinion, he’ll “seriously consider” using the following internal rule:

Unless the context clearly requires otherwise, terms such as “Party A will take Action X” mean that Party A is required to take Action X”; likewise, “Party B will not take Action Z” means that Party B is prohibited from taking Action Z.

If because of the nature of the relationship between the contract parties a will used in a contract is interpreted as not expressing an obligation, the lesson to take from that isn’t “The word will expresses an obligation, dammit!” Instead, figure out what you really want to say and how to say it in a way that precludes confusion. And more generally, if you can’t rely on your verb structures to convey the intended meaning, something’s amiss.

The only way to be sure that you’re using the right verb structures is to understand the semantics possibilities and how to use different verb structures to express them. That way, you limit reader confusion and, in particular, drafter confusion. That’s why I developed my categories-of-contract-language framework. It’s also why I use shall to express obligations imposed on a party who is the subject of the sentence—that allows me to use will and must to serve other functions. Using shall to serve this function is safe, as I explain above. And I can use the has a duty test to police my use of shall: if a given shall doesn’t pass the has a duty test, that tells me I’m dealing with something other than language of obligation.

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.