25 Mar 2019

The “Shall” Conundrum: When Use Becomes Abuse

When learning to draft or translate contracts, we’re often taught that “shall” denotes a sense of command. However, a closer look at the contexts in which “shall” is used calls that rule into question.

As a lawyer-linguist, I am often asked to confirm the accuracy of translated contracts or edit and review drafts by fellow lawyers. These are two of my favorite tasks because I love contracts. I realize that might be an odd thing to say. How can anyone “love” contracts, right? But drafting a solid contract is like solving a puzzle, where each clause is an individual piece that fits perfectly into a beautiful work of legal art that provides a valuable service to our clients. Next to constitutions and bills of rights, contracts are to legal drafting what poetry is to literary writing: an art form in which language is used for its inherent qualities. It’s said that “a contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty,” but it has also been pointed out that, “[t]his, like similar definitions, is somewhat misleading. While it is true that a promise, express or implied, is a necessary element in every contract, frequently the promise is coupled with other elements, such as physical acts, recitals of fact, and the immediate transfer of property or interests.”

 If you speak American English, you rarely get to use the word “shall.” But when you’re drafting or translating contracts, you may be tempted to copy other drafters and translators and fancy-up your writing with the ever-pervasive “shall.” At school in the U.S., many of us were forced to learn the following cumbersome rule:

Simple Futurity

 

Singular

Plural

First person:

I shall

we shall

Second person:

you will

you will

Third person:

he will

they will

 

Determination, Promise, or Command

 

Singular

Plural

First person:

I will

we will

Second person:

you shall

you shall

Third person:

he shall

they shall

But out in the real world, this rule is inconsistent with the way Americans actually speak and write, leading many laymen to believe “shall” has fallen into absolute disuse. But legal and translation professionals know otherwise. When learning to draft or translate contracts, we’re often taught that “shall” denotes a command.

However, a closer look at the contexts in which “shall” is used calls that rule into question. This is because “shall” is often used to indicate future tense or even permission in American contracts.

Thus, the belief that “shall” denotes a command alone is only a half-truth.

The belief that “shall” denotes a command alone is only a half-truth.

In Elements of Legal Style, Bryan Garner, editor-in-chief of Black’s Law Dictionary, recommends cutting “shall” altogether, but for those who are not ready to bury “shall” just yet, he suggests the following rule of thumb:

“If you want to retain shall, then make sure that in each sentence in which it appears, it’s the equivalent of must.”

This may seem like an attractive solution in light of Garner’s own argument that “few lawyers have the semantic acuity to identify correct and incorrect ‘shalls’ even after a few hours of study.” But, as pointed out by Kenneth Adams in his Manual of Style for Contract Drafting, “just because shall passes the ‘has a duty’ test doesn’t mean the provision in question makes sense as an obligation.”5 The question, then, is beyond linguistic.

So how do we, as drafters and translators, know when we’re abusing “shall”? There are at least three very clear and simple cases of abuse that I see in dual language or translated contracts almost every day.

Article: http://www.atanet.org/chronicle-online/wpcontent/uploads/March-April-20191.pdf