One of the wonders of English is the rich nuances our language permits.
That richness, combined with modern usage – whether legal or otherwise – also creates confusion. A major issue for drafters and interpreters of legal documents is the use and abuse of mandatory and permissive verbs.
Mandatory verbs are those where one party to a contract has an obligation or duty to do something. Failure to comply with a mandatory provision is a breach of contract.
Permissive verbs are those where one party to a contract has the power or right to do something. There is no remedy for failing to comply with a permissive provision.
Some of the more common words are:
- SHALL/SHOULD: this is an imperative verb – it refers to an obligation or duty on one of the parties -see note below.
- MUST: this is an imperative verb. It has no other meaning and is therefore clearer.
- WILL/WOULD: has an imperative undertone but can be permissive
- MAY: this is a permissive verb – it refers to a right or power on one of the parties. It is occasionally used where an imperative verb is required.
The US Plain Language website states that this verb has been ‘so corrupted by misuse that it has no firm meaning’. It also states that there are 76 pages in a legal reference book setting out cases that interpret ‘shall’.
Bryan Garner in his Dictionary of Modern English Usage (2001 edition) says: ‘courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.’
So ‘shall’ can:
- Be obligatory – “the contractor shall carry out the works”
- Be procedural – “if the contractor seeks an extension of time, it shall provide the contract administrator with…”
- Be explanatory – “the employer shall have complied with its obligations by the sending of the certificate”
- Be directory – “any party seeking to bring a claim for breach of this contract shall do so within 30 days of the issue of…”
This confusion is noted in the Lawyerist blog which proposes that lawyers should help root out this antiquated, confusing, oft-litigated bit of legalese by eliminating it at every chance you get. The blog continues: “ ‘Shall’, due to its multiple meanings, creates ambiguity that greatly increases the likelihood of disputes about what a sentence means. That is exactly what we are paid to avoid.”
What should you do?
I prefer ‘must’ and use it in my 500-word contracts.
So the next time you pick up your fountain pen (or start typing onto a computer) think carefully before committing the sin of habit. Strike a blow against legalese and raise the flag for clarity in legal writing, and use ‘must’.