Much has been written about the words that contract writers should adopt to portray an obligation. Is it shall, must or will? Here’s a summary of the expert views:
- Ken Adams proposes a disciplined use of shall (banishing shall from business contracts) with must and will for non-party obligations or other purposes
- Joseph Kimble prefers must as (1) shall is often not used to mean ‘has a duty to’ and (2) shall is corrupted and ambiguous (the law does not require legalese)
- Bryan A Garner asks you to delete shall (shall we abandon shall, which received this reply from Ken Adams)
- Mignon Fogarty (aka Grammar Girl) reports that will has replaced shall in most uses, although she defers to lawyers for the legal use of shall (shall-v-will)
- Rich Wheeler claims must has ambiguous timing – as it can refer to past, present or future obligations – so prefers shall (must-v-shall)
- Wayne Shiess sides with Joseph Kimble (shall-v-will)
- The US Federal Government recommends must (three reasons, shall or must) citing Garner and Kimble
- The Economist pronounces shall is no longer necessary (one more round with shall) citing Garner
- The Michigan Bar Journal discusses the merits of shall (using shall or will) citing Adams and Garner
- Trudeau’s research showed that readers prefer must over shall.
Given that there is no consistent approach, use must be defined by what each contract writer believes will provide clarity for the contract users.
My 500-word contracts are written for people in the UK construction industry. They are not lawyers with an understanding of the fine distinctions between different types of language in a contract (as Ken Adams distinguishes between the uses of these words). They are practical and pragmatic proponents of action over words.
What should you do?
You could check each clause for sense and then determine the best verb for the job or you could stick with your personal preference, which in my case [read more] is supported by research as being the readers’ personal preference [read more].
