Cecily Zamora
Shall is a commonly used word in legal drafting, but its meaning is ambiguous. In the context of contracts and legal documents in the UK, the word shall has been interpreted in multiple ways, including must, may, will, or even should. This ambiguity can lead to unnecessary litigation and disputes. Legal writing experts now prefer using the unambiguous must to indicate an absolute obligation. However, the use of shall in legal contexts varies across different jurisdictions, and common law precedents can also influence the interpretation of this word.
| Characteristics | Values |
|---|---|
| Usage in legal writing | Shall is commonly used in legal writing, but its usage is declining due to ambiguity. |
| Ambiguity | Shall can be interpreted as "must", "may", "will", "should", or prediction. |
| Mandatory obligation | Shall is often used to indicate a mandatory obligation or future action. |
| Alternative words | "Must", "will", "is to", "are to", and "has a duty to" can be used as alternatives to "shall". |
| Jurisdiction | The usage of "shall" may vary across different jurisdictions. |
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What You'll Learn
'Shall' in legal drafting
"Shall" is a modal verb, one of the "helping verbs" such as "can", "will", "could", "must", "would", "might", and "should". In English grammar, the purpose of a modal verb is to add meaning to the main verb in a sentence by expressing possibility, ability, permission, or obligation. For example: "You must complete this task on time"; "He might be the inspiration for my life"; "The doctor can see you now".
"Shall" is a commonly used word in legal drafting, particularly in legislation and legal documents. However, it is not commonly used in ordinary English, and its use in legal drafting has been criticised as problematic and confusing. There is a growing movement to avoid the use of "shall" in legal drafting, with some jurisdictions and organisations adopting a "shall-less" style.
The word "shall" has multiple meanings, and its use can lead to ambiguity. It can mean "has a duty to", but it is also often used to express futurity or future intent. For example, "If the Buyer shall learn that the Seller shall have leased the property". In this sentence, "shall" is used to indicate a future action, but it could be replaced with the present tense to avoid confusion: "If the Buyer learns that the Seller has leased the property".
Some experts recommend replacing "shall" with "must" to indicate a mandatory obligation, as in "You must complete this task on time". "Must" is a stronger, more definitive word that leaves less room for interpretation. It is also recommended to use "will" to create a promise or contractual obligation, as in "Landlord will clean and maintain all common areas".
Despite the criticism and growing movement to avoid its use, some legal drafters continue to defend the use of "shall". They argue that it is a useful word to impose a duty on a capable actor, such as "Lessee shall sell the remaining oil". However, this usage must be confined to this specific context to maintain clarity and consistency.
In conclusion, while "shall" has been a favourite word of lawyers for a long time, its use in legal drafting is becoming increasingly controversial. To avoid confusion and misinterpretation, legal drafters are encouraged to minimise the use of "shall" and instead use clearer and more commonly understood words such as "must" and "will".
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'Shall' in commercial contracts
The use of "shall" in commercial contracts is a nuanced topic that requires careful consideration. While some sources suggest that "shall" can be used to express a future intention or impose an obligation, others argue that its ambiguity may lead to misinterpretation and potential litigation. For instance, in the case of Royal Bank of Scotland plc v Jennings [1997], the use of "shall" led to an interpretation that obliged the landlord to undergo a rent review process, showcasing the weight this word can carry.
In commercial contracts, "shall" is often employed by parties to express their intentions or impose obligations. However, inconsistent drafting can render the traditional interpretation unreliable. To avoid ambiguity, it is crucial to consider the context of the overall agreement and apply common sense to discern the natural and reasonable meaning of the clause in question.
The word "shall" has different implications depending on whether it is used in the first or second/third person. When used in the first person, "shall" indicates a future intention, while "will" conveys an obligation. Conversely, in the second or third person, "will" suggests a future obligation, and "shall" signifies compulsion and obligation.
To address the potential pitfalls of "shall," some sources recommend using must instead, as it unequivocally denotes an absolute obligation. However, others argue that "must" can also be interpreted differently due to the context and commercial purpose. Ultimately, the safest approach is to ensure consistent drafting and consider the needs and preferences of the users of the contract.
In conclusion, while "shall" remains prevalent in business contracts, its usage warrants caution. Drafters must carefully consider the potential for ambiguity and the specific needs of their contract users. "Must" can be a safer alternative, but it is not immune to varying interpretations. Ultimately, the key lies in consistent drafting that aligns with the overall agreement and the natural meaning of the language used between the parties.
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'Shall' vs 'must'
In the context of commercial contracts, the use of 'shall', 'will', and 'must' is important. While 'will' conveys an obligation when used in the first person, 'shall' indicates a future intention. Conversely, in the second or third person, 'will' conveys a future obligation, while 'shall' implies compulsion and obligation. For instance, "We shall fight on the beaches" is a famous example of the use of 'shall' to denote obligation.
However, due to inconsistent drafting, the traditional interpretation may not always be reliable. It is crucial to consider the context of the overall agreement and apply common sense to determine the natural and reasonable meaning of a clause. In commercial contracts, the intended consequence of the chosen word should be clear to avoid close scrutiny and potential litigation.
'Must' is often considered the safest and most definitive choice to express an absolute obligation. It is favoured in English legislation over 'will' or 'shall' for its unambiguous nature. 'Must' always conveys a sense of compulsion, while 'shall' can have multiple interpretations, including 'will', 'may', or 'is', leading to potential ambiguity in legal or technical documents.
In engineering documentation, there is a similar debate. Some prefer 'must' for its clarity and because it sounds less pretentious, while others argue that shall' is clearer in context and has a precise formal interpretation as a command. However, 'shall' is rarely used in everyday conversation, which can make it seem out of place.
Ultimately, the choice between 'shall' and 'must' depends on the context and the desired level of precision. 'Must' is generally preferred for its unambiguous nature and ability to capture an absolute obligation. However, 'shall' can be useful when a specific interpretation is required, especially in engineering specifications and other technical documents.
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'Shall' in legislation
The word "shall" is commonly used in legislation and legal drafting. It is often used to indicate a mandatory obligation or a sense of obligation. For example, "the Company shall deliver 100 widgets within 90 days" indicates that the company has a duty to deliver the widgets.
However, the use of "shall" can be ambiguous and subject to different interpretations. It has been interpreted to mean "must", "may", "will", or even "should". In some cases, using "shall" can lead to unnecessary litigation as the intended meaning may become distorted or confused. For example, the sentence "the employee shall be reimbursed all expenses" could be interpreted as either the employee having a duty to be reimbursed or an entitlement to be reimbursed.
To avoid ambiguity and potential litigation, legal writing experts now prefer using the unambiguous "must" or "are required" to indicate an absolute obligation. The Plain Writing Act of 2010 in the United States, for instance, required federal agencies to use "must" instead of "shall" when imposing requirements.
In the UK, the Office of Parliamentary Counsel's Drafting Techniques Group has also recommended the minimum use of "shall" in legislation, with some constitutions, such as South Africa's, being rewritten to be "shall-less".
Despite these recommendations, "shall" continues to be used in many agreements, contracts, and legal forms.
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'Shall' in governing law and jurisdiction clauses
A "Governing Law and Jurisdiction" clause is an important aspect of contracts, particularly in international agreements or when dealing with cross-border transactions. It specifies the legal framework that will be applied to interpret and enforce the terms of the contract and designates the location where any legal disputes will be resolved. This clause ensures clarity and reduces uncertainty in the event of a dispute, providing all parties with certainty regarding the legal standards and courts that will have authority in conflicts.
The governing law clause and the jurisdiction clause serve distinct purposes. The governing law clause specifies the body of law a court must use to interpret the contract, while the jurisdiction clause identifies which nation's court has the authority to hear the dispute. For instance, a contract may specify English law as the governing law and French courts as the jurisdiction, meaning that disputes will be brought before French courts following French procedures, but the contract will be interpreted through English law.
When drafting a contract, it is crucial to carefully select the appropriate governing law and jurisdiction to minimise legal risks. The legal frameworks, convenience, and relevance to the contract's scope should be considered. Consulting legal experts can assist in making an informed decision that aligns with the contract's objectives and minimises enforcement challenges. This is especially important when contracting with consumers, as the governing law clause should not deprive consumers of the rights they would typically hold under their domestic laws.
In the context of international contracts, the phrase "this contract shall be governed by the laws of England" is commonly used to ensure the agreement adheres to English law, regardless of the parties' locations or business activities. This brings consistency and predictability to agreements, and English law is often chosen for its well-established legal system and robust contract law precedents. However, it is worth noting that the choice of governing law can significantly impact the interpretation and enforcement of contractual terms, as certain legal concepts may exist in one jurisdiction but not in another.
To illustrate the importance of governing law and jurisdiction clauses, consider the case of Apple Corps Ltd v Apple Computer Inc., where a dispute arose due to the absence of these clauses in the agreement. Each party adamantly refused to accept the other's jurisdiction or governing law, leading to uncertainty and additional time and cost spent arguing over the applicable law at the outset of the dispute. Therefore, it is essential to give careful consideration to these clauses to avoid similar complications.
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Frequently asked questions
'Will' conveys an obligation when used in the first person, whereas 'shall' implies a future intention. When used in the second or third person, 'will' conveys a future obligation, while 'shall' imports compulsion and obligation.
'Shall' is the most frequently used modal verb in legal drafting. It has been used for generations to create a mandatory obligation. However, the word is ambiguous and can lead to unnecessary litigation.
To avoid ambiguity, most legal writing experts now prefer the unambiguous 'must'. The Plain Writing Act of 2010 required all federal agencies to use 'must' instead of 'shall' when imposing requirements.
