Kara Sears
The use of 'should' and 'must' in law is a complex issue. In the UK, 'must' is generally preferred in legal drafting as it suggests an absolute obligation and provides a safer route to capturing the intended meaning. On the other hand, 'should' is used to indicate a recommendation or a suggestion, conveying that an action is advisable but not mandatory.
'Shall' is another term that has traditionally been used in legislation, but its usage is declining due to ambiguity and inconsistent interpretation. While some sources suggest avoiding 'shall' in contracts and legislation, others argue for its continued use in specific contexts, such as pre-production specifications. Ultimately, the choice between 'should' and 'must' in legal drafting depends on the specific circumstances and the intention behind the obligation or requirement being imposed.
'Should' or 'Must' in Law (UK)
| Characteristics | Values |
|---|---|
| Conveys future obligation | 'Will' |
| Imports compulsion and obligation | 'Shall' |
| Absolute obligation | 'Must' |
| Discretion | 'May' |
| Mandatory | 'Shall' |
| Permissive | 'May' |
| Clearest way to express a requirement or obligation | 'Must' |
| Expressing future tense | 'Shall' |
| Expressing advice or things that are a good idea to do | 'Should' |
| Expressing obligation or things that are necessary to do | 'Must' |
| Expressing personal opinions about what is necessary to do | 'Must' |
| Expressing what an authority figure has said is necessary to do | 'Have to' |
| More frequent in conversation | 'Have to' |
| More common in formal writing | 'Must' |
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What You'll Learn
'Shall' vs 'will' vs 'must'
In the context of UK law, the use of 'shall', 'will', and 'must' is important in drafting contracts and legislation. While the specific interpretation can depend on the context and jurisdiction, here is an overview of the distinctions between these words:
Shall:
'Shall' is often used in legal documents, particularly in the UK, to indicate a future obligation or requirement. It conveys a sense of compulsion and obligation, as in the famous example, "We shall fight on the beaches". However, the use of 'shall' has been criticised as ambiguous and open to misinterpretation. Some sources suggest that it has no firm meaning and can be confusing, leading to litigation. As a result, there is a growing preference for using 'must' instead of 'shall' to impose clear and definitive requirements or obligations.
Will:
'Will' is commonly used in the first person to indicate a future action or intention. In the second or third person, it conveys a future obligation. However, its usage can vary depending on the context and regional differences.
Must:
'Must' indicates an absolute obligation or requirement. It is the clearest way to express that something is mandatory and carries a strict prohibition when used in the negative form ('must not'). 'Must' is favoured in legislation as it provides the safest and most definitive way to capture an intended obligation. It is also preferred by organisations like the FAA and some government bodies.
In summary, while 'shall' has traditionally been used in legal contexts, its usage is declining due to concerns about ambiguity. 'Must' is increasingly favoured as it provides a clearer and more definitive expression of obligation or requirement. 'Will' is commonly used to indicate future actions or intentions but can also convey obligation depending on the context and person referenced.
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'Must' in commercial contracts
The use of 'must' in commercial contracts is essential to establishing clear and enforceable obligations. In the context of UK law, 'must' signifies an absolute obligation and is favoured over 'will' or 'shall' to indicate a mandatory requirement. This distinction is particularly relevant when drafting contracts to ensure the intended consequences are clear and to avoid potential legal scrutiny.
When drafting commercial contracts, it is crucial to employ precise language to define the rights and responsibilities of the parties involved. The use of 'must' is a definitive way to express an obligation or requirement, leaving little room for ambiguity. This clarity is essential in preventing disputes and upholding the integrity of the agreement.
In commercial contracts, 'must' is commonly used to establish essential elements such as offer, acceptance, consideration, and intention to create legal relations. For instance, an offer must be clear and unequivocal, and acceptance must mirror the terms of the offer exactly. The use of 'must' in these contexts underscores the importance of these elements and emphasises the need for compliance by all parties.
Furthermore, 'must' can be effectively utilised to set parameters and establish boundaries within the contract. For example, specifying that "payment must be made within 30 calendar days of receiving the goods or services" leaves no room for interpretation and clearly delineates the expectations of the parties involved. This precision helps to mitigate potential disputes and ensures a mutual understanding of the agreed-upon terms.
While the use of 'must' is a powerful tool in contract drafting, it is important to recognise that its effectiveness also relies on the overall context and structure of the agreement. The natural and reasonable meaning of the clause containing 'must' should be considered to ensure it aligns with the parties' intentions. Additionally, while 'must' suggests an absolute obligation, it is worth noting that other words like ''may' can be used to introduce discretion or flexibility into the contract, allowing for adaptations based on specific circumstances.
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'Shall' in legislation
The use of 'shall' in legislation has been a topic of debate, with some arguing for its replacement with 'must' to impose requirements or obligations. 'Shall' is often viewed as ambiguous, with the potential for multiple interpretations. Legal drafters, however, have traditionally favoured the use of 'shall' in legislation.
The word 'shall' has been criticised for its ambiguity and lack of clarity in legislative drafting. In most jurisdictions, courts have interpreted 'shall' to mean not just 'must' but also 'may', 'will', or 'is'. This ambiguity can lead to litigation and has resulted in a preference for 'must' in some jurisdictions, including Australia and several Canadian provinces, which have amended their Interpretation Acts to reflect this.
The use of 'shall' in legislation is often attributed to the legal community's traditional preference for this term. Legal drafters are taught to use 'shall' in law school, and this practice is reinforced in law firms. While 'shall' can indicate a mandatory action, it is not always used consistently and can lead to confusion.
In contrast, 'must' is generally seen as a clearer and more definitive term to express requirements or obligations. It conveys an absolute obligation and is less likely to be misused or misinterpreted. 'Must' is favoured by official drafting bodies and is considered the safest route to capturing an intended absolute obligation in commercial contracts.
Despite the move towards 'must', there are still instances where 'shall' may be more appropriate. For example, in codes of conduct or contracts, 'shall' can be used to indicate promises or strong obligations of the parties involved. However, to maintain clarity and consistency, it is generally recommended to use 'must' for requirements and prohibitions, reserving 'shall' for specific contexts where it is more suitable.
In conclusion, while 'shall' has been a common term in legislation, the trend is moving towards 'must' to impose requirements or obligations due to its clearer and less ambiguous nature. 'Shall' is still used in specific contexts, such as contracts and codes of conduct, but drafters must ensure consistent usage to avoid confusion and potential litigation.
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'Must' in legislation
In the context of UK law, the word "must" is used to denote an absolute obligation. It is the clearest way to express a requirement or obligation, as it always suggests an imperative.
"Must" is preferred in legal drafting as it is definitive and provides the safest route to capturing the intended absolute obligation. It is also commonly used in commercial contracts to convey future obligations. For instance, "Passengers must fasten their seat belts".
The use of "must" is also prevalent in legislation and legislation-type documents. It is the preferred choice in common-law jurisdictions, including Britain, to express obligation. This is because "must" is seen as clearer and less ambiguous than "shall", which has no firm meaning due to its inconsistent usage.
However, the use of "shall" and "must" together in the same Act or regulation is discouraged, as it may raise questions about differing meanings. "Shall" is still used in some legislation, such as EU directives, and in specific contexts, such as pre-production specifications, where it may be considered more appropriate than "must".
In summary, "must" is a powerful word in UK law, conveying an absolute obligation and is favoured for its clarity and definitiveness, especially in commercial contracts and legislation-type documents.
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'Should' vs 'shall'
The use of 'shall' and 'should' varies depending on the context and the speaker's intention. 'Shall' is an auxiliary verb that expresses what one plans, intends, or is expected to do. It can also be used interchangeably with 'will' to form the future tense. For instance, "I shall do my very best to wake up at 4 o'clock in the morning". In legal contexts, 'shall' has been used to denote a legal obligation, although it is now considered too ambiguous for legal documents due to inconsistent usage.
'Should' is often used to express duty or obligation, as well as to give suggestions or advice. It is commonly used in everyday conversation and writing. For example, "You should always have a spare roll of toilet paper". 'Should' can also be used in the subjunctive mood to express hypothetical statements, such as "If the king should die unexpectedly, his brother becomes regent".
In legal contexts, the use of 'shall' and 'should' can have specific implications. 'Shall' in a legal document denotes a mandatory action or intention that must be carried out in the future. On the other hand, 'should' in a legal context may indicate a recommendation or a suggested course of action.
It is worth noting that the legal community is moving towards a preference for 'must' over 'shall' to express requirements or obligations clearly. 'Must' always conveys an absolute obligation and is less ambiguous than 'shall'. As such, 'must' is considered the safest drafting choice in commercial contracts to capture an intended obligation.
In summary, while 'shall' and 'should' have distinct meanings in general usage, their usage in legal contexts can be nuanced and subject to interpretation. 'Shall' indicates a mandatory action or intention, while 'should' expresses duty, suggestions, or hypothetical situations. However, due to inconsistent usage, 'must' is often favoured in legal drafting to convey an absolute obligation with greater clarity.
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Frequently asked questions
'Will' conveys a future obligation when used in the second or third person, while 'shall' is used to express compulsion and obligation. However, the use of 'shall' is now considered old-fashioned and is rarely used in everyday conversation.
'Must' is used to express an absolute obligation and is the preferred term in UK law. It is considered the clearest way to express a requirement or obligation and is favoured over 'shall' and 'will'.
'Should' is used to express something that is recommended or advised, but not required. It is often used to give advice or make suggestions. On the other hand, 'must' indicates an obligation or requirement that is necessary to follow.
While 'shall' is still used in some legal documents, it is generally advised against. 'Shall' is considered ambiguous and outdated, and its use can lead to confusion and litigation. 'Must' is the preferred term to express requirements and obligations in contracts and legislation.
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