Kara Sears
The use of 'shall' and 'must' in legal writing has been a topic of debate, with the current trend moving towards replacing 'shall' with 'must' to indicate a requirement or obligation. This shift is happening in various jurisdictions, including the UK, where English legislation favours 'must' over 'shall' or 'will'. 'Must' is seen as a clearer and more absolute expression of obligation, while 'shall' is considered ambiguous and rarely used in everyday conversation. However, some attorneys still prefer 'shall' due to its rarity bringing precision and its formal interpretation as a command. In engineering documentation, 'shall' and 'must' are sometimes used interchangeably, depending on the entity being referred to. Ultimately, the intended consequence should be clear, regardless of the modal verb used.
Shall vs Must in UK Law
| Characteristics | Shall | Must |
|---|---|---|
| Use Case | Used in legal documents for future requirements. | Used to impose requirements and prohibitions. |
| Plain Language | No, it is ambiguous and rarely used in conversation. | Yes, it is the clearest way to express a requirement. |
| Implication | Power and authority. | Equality between speakers. |
| Interpretation | One formal interpretation: a command establishing duty or obligation. | Multiple interpretations: also used to describe inevitable occurrences. |
| Precision | Rare usage brings precision. | Commonly used, less precise. |
| Litigation | Its misuse breeds litigation. | N/A |
| Current Practice | Moving towards using "must". | Commonly used in legislation. |
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What You'll Learn
'Shall' vs 'Must' in commercial contracts
The use of "shall" and "must" in commercial contracts has been a topic of debate among legal professionals. Some argue that "must" is the clearest way to express a requirement or obligation, while others defend the use of "shall" as a traditional and established practice in contract drafting.
"Shall" has been criticised for being ambiguous and rarely used in everyday conversation. Legal professionals have misused "shall" to mean something other than "has a duty to", leading to litigation. As a result, the legal community is moving towards preferring "must" as it clearly imposes requirements and prohibitions. "Must not" should be used for prohibitions instead of "no must". Using "must" can help drafters create clear and understandable contracts, reducing the risk of litigation and promoting goodwill between parties.
However, supporters of "shall" argue that its use in contracts is pragmatic as it is already a major feature in contract drafting and is expected to continue being used indefinitely. "Shall" can be useful for imposing obligations on the subject of a sentence and is preferred when both parties are committed to the deal. Additionally, "shall" can be softened with "will" when the customer is not yet fully convinced, such as in enterprise software deals.
Ultimately, the effectiveness of these terms depends on their context and intended consequence within the contract. While "must" provides a safer and more definitive route, "shall" can still be useful in specific situations. To ensure clarity, drafters should consider using a combination of words to articulate different meanings and avoid ambiguity.
In conclusion, while there are arguments for both "shall" and "must" in commercial contracts, the preference seems to be shifting towards "must" due to its clear and unambiguous nature. However, "shall" still has its place in certain contexts, highlighting the importance of a clear framework for verb usage in contract drafting.
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'Shall' and 'Must' in legislation
The use of 'shall' and 'must' in legislation is a topic of debate, with some arguing for the continued use of 'shall' and others advocating for the use of 'must'.
Those who prefer 'shall' argue that it is a word with a single formal interpretation: as a command establishing a duty or obligation. Its rarity in common speech brings precision to legal documents, ensuring that there is no ambiguity regarding the obligations being imposed.
However, the legal community is increasingly favouring the use of 'must' over 'shall'. This preference is driven by the argument that 'shall' is ambiguous and rarely used in everyday conversation, which can lead to confusion and litigation. 'Must', on the other hand, is seen as a clearer way to express a requirement or obligation. It is also more commonly used in English legislation, suggesting an absolute obligation.
The Interpretation Acts of several Canadian provinces, including British Columbia, Alberta, and Manitoba, have been amended to interpret 'must' as imperative. This trend is also observed in the new Federal Rules of Appellate Procedure, which use 'must' instead of 'shall'.
Ultimately, the choice between 'shall' and 'must' may not significantly impact the effectiveness of a contract, as long as the intended consequence is clear. However, given the growing preference for 'must' and the potential for 'shall' to cause confusion, it is advisable to use 'must' when imposing requirements or obligations in legislation.
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'Shall' and 'Must' in legal writing
The use of 'shall' and 'must' in legal writing has been a topic of discussion and debate among legal professionals and drafters. Traditionally, "shall" has been used in legal documents to indicate a mandatory action or obligation. However, there is a growing trend in legal writing to replace "shall" with "must". This shift aims to improve clarity and align with plain language principles.
"Shall" has been criticised for being ambiguous and rarely used in everyday conversation. It has been misused and misinterpreted in legal contexts, leading to litigation. "Shall" is often associated with a sense of duty or obligation, but its meaning can be vague and open to interpretation. For example, in the sentence "The Contractor shall provide 3 printed copies of the design and construction documents," the use of "shall" indicates that the contractor has a duty to fulfil the obligation of providing the specified documents. However, the phrase "shall provide" could be interpreted in multiple ways, leading to potential confusion.
On the other hand, "must" is generally recognised as a clearer and more straightforward way to express a requirement or obligation. It conveys a sense of necessity and leaves less room for interpretation. In the sentence "You must finish the project in a week," the use of "must" leaves no ambiguity about the expectation and requirement. "Must" is also more commonly used in everyday conversation, making legal documents more accessible and easier to understand for non-lawyers.
While some legal drafters still prefer "shall" due to its precision and technicality, the consensus is shifting towards "must". Using "must" helps avoid ambiguity and reduces the risk of misinterpretation. It is essential to ensure that legal documents are clear and understandable to all parties involved, and using plain language is a step towards achieving that goal.
In conclusion, when it comes to legal writing, using "must" instead of "shall" is generally recommended to impose requirements or express obligations. "Must" is clearer, more accessible, and aligns with the trend towards plain language in the legal community. However, it is crucial to consider the context and overall obligation when choosing between "shall" and "must" to ensure that the intended consequence is clear and unambiguous.
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'Shall' and 'Must' in engineering documentation
The use of "shall" and "must" in engineering documentation is an important consideration for clear communication and to avoid confusion or contractual disputes. While the choice between the two words may seem like a matter of semantics, it can have significant implications in legal and technical contexts.
In engineering documentation, the terms "shall" and "must" are often used to indicate requirements or obligations. "Shall" is traditionally used to indicate a mandatory obligation, while "must" is seen as imposing a requirement. However, the use of these terms is not always consistent, and the interpretation can vary depending on the context and the specific engineering field.
In legal writing, there is a growing trend to replace "shall" with "must" as the latter is considered clearer and less ambiguous. This preference for "must" is also reflected in some engineering disciplines. For example, the Federal Aviation Administration (FAA) has started to require the use of "must" over "shall" in certain documents. Additionally, the International Council on Systems Engineering (INCOSE) accepts "must" for requirements, although they still favour "shall".
On the other hand, some engineering standards and companies continue to use "shall" as their preferred term for indicating obligations. For instance, the AS9100 standard and some companies' best practices utilise the terms "shall", "should", "may", and "can" in engineering documentation. Proponents of using "shall" argue that it has a specific meaning in the context of requirements and that it draws attention due to its rarity in common speech.
To ensure clear communication and avoid confusion, it is essential to define the terms used in engineering documentation. This includes clearly stating the intended meaning of "shall" or "must" at the beginning of a specification or contract. Additionally, consistency in the use of these terms is crucial. Mixing "shall" and "must" interchangeably within the same document or across different documents can lead to misinterpretation and potential disputes.
In conclusion, while there is a move towards using "must" in legal and engineering contexts due to its perceived clarity, the choice between "shall" and "must" in engineering documentation depends on the specific field, company standards, and industry conventions. The key consideration is to ensure that the intended consequence or obligation is clear, consistent, and aligned with relevant standards and regulations.
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'Shall' and 'Must' in common usage
The use of "shall" and "must" varies depending on the context and the field. In common usage, "shall" is considered archaic and is rarely used in everyday conversation. On the other hand, "must" is a commonly used word that conveys a sense of obligation or requirement. For example, "You must finish the project in a week" is a phrase that people are more likely to use and understand.
In the legal community, there is a similar preference for "must" over "shall". Some lawyers argue that "shall" is ambiguous and often misused, leading to litigation. As a result, the legal community is moving towards using "must" as it is clearer and less open to interpretation. This preference for "must" is also reflected in new legislation, such as the Federal Rules of Appellate Procedure.
However, some attorneys still prefer "shall" because of its rarity and precision in legal or technical documents. "Shall" has a single formal interpretation as a command establishing a duty or obligation. In contrast, "must" can sometimes be ambiguous and have multiple connotations, as it can also refer to an inevitable occurrence. For example, "The saw blade guards must return to their secured positions before resetting the safety interlocks" could be interpreted in multiple ways.
In engineering documentation, the use of "shall" and "must" as words of obligation can vary depending on the company and industry standards. Some engineers prefer "must" because it sounds less pretentious, while others follow industry-specific guidelines that use "shall". Ultimately, the choice between "shall" and "must" in engineering documentation depends on the context and the intention to follow specific standards.
To summarise, while the use of "shall" and "must" can vary in specific fields like law and engineering, "must" is generally preferred in common usage due to its clarity and familiarity. "Must" is more commonly used and understood by people in everyday conversation, making it a more effective way to convey obligations or requirements.
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Frequently asked questions
'Shall' is used to indicate a legal obligation, whereas 'must' is used to impose requirements or prohibitions.
'Shall' is preferred because it is an atypical word used in limited contexts, which brings precision to the text. It also has a single formal interpretation as a command.
'Must' is preferred because it is used in everyday conversation and is, therefore, clearer and less pretentious.
Yes, as long as the overall obligation is clear. However, using both in the same document could create ambiguity.
In reality, it is unlikely to make a significant difference as long as the intended consequence is clear.
