As a lawyer-linguist, I am often asked to confirm the accuracy of translated contracts or to 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 is 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,” (Willinston 1957) 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” (Perillo 1998).
If you speak American English, you rarely ever 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:
|First person||I shall||we shall|
|Second person||you will||you will|
|Third person||he will||they will|
Determination, promise or command
|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 in absolute disuse. As legal and translation professionals, we know otherwise. When learning to draft or translate contracts, we’re often taught that shall denotes command. However, a close look at the contexts in which shall is used calls that rule into question as well, since shall is often used to indicate future tense or even permission in American contracts. Thus, the belief that shall denotes 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” (Garner, The Elements of Legal Style 2002).
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 use shalls even after a few hours of study” (Garner, Garner’s Dictionary of Legal Usage 2011). But, as pointed out by Kenneth A. 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” (Adams 2013). 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:
1) When “must” does the job in conditional sentences. Let’s look at the following example:
For the purpose of reimbursement for expenses incurred by Acme, Acme shall submit to Widgetco, no later than 60 days after receiving it, each invoice for such expenses.
There are many things wrong with the way this sample provision is drafted, but let’s focus on shall. Obviously, Acme doesn’t have an obligation to submit invoices to Widgetco in general, it only has an obligation to submit invoices if it wants to be reimbursed for its expenses. Among other minor adjustments, this provision can be improved by dropping shall and replacing it with “must” as follows:
For reimbursement, Acme must submit to Widgetco, no later than 60 days after Acme receives it, each invoice for expenses that Acme incurs.
Adams illustrates this with an excellent example from the case of Howard v Federal Crop Insurance Corp., 540 F.2d 695 (4th Cir. 1976) in which Plaintiff-Appellants sued the Federal Crop Insurance Corporation (FCIC) to recover for losses to their 1973 tobacco crop resulting from alleged rain damage after recovery was denied because fields were plowed prior to inspection by the FCIC adjustor.
The provision in question stated that:
The tobacco stalks on any acreage of tobacco of types 11a, 11b, 12, 13, or 14 with respect to which a loss is claimed shall not be destroyed until the Corporation makes an inspection. (Emphasis added.)
The Restatement of the Law of Contracts, §261, states that: “Where it is doubtful whether words create a promise or an express condition, they are interpreted as creating a promise; but the same words may sometimes mean that a party promises a performance and that the other party’s promise is conditional on that promise.”
The Restatement gives the following example involving a promise:
“2. A, an insurance company, issues to B a policy of insurance containing promises by A that are in terms conditional on the happening of certain events. The policy contains this clause: ‘provided, in case differences shall arise touching any loss, the matter shall be submitted to impartial arbitrators, whose award shall be binding on the parties.’ This is a promise to arbitrate and does not make an award a condition precedent of the insurer’s duty to pay.”
Naturally, the court held that, because there was no language indicating that the provision in question was conditional, it had to be construed as a promise.
2) When future simple “will” does the job. In this case, one must proceed with caution. Because will can also be used to express compulsion (e.g., “as long as you’re living under my roof, you will do as I say!”), it can fall into the same traps as shall when used to express anything other than simple future. However, if your contract already has one too many shalls, then replacing future simple shall with will makes perfect sense, despite that risk. For example, this:
The term of this Agreement shall begin on the date referenced in paragraph eight of this Agreement and shall continue until the earlier to occur of […]
Can be changed to this:
The term of this Agreement will begin on the date referenced in paragraph eight of this Agreement and will continue until the earlier to occur of […]
3) When stating facts. Because statements of fact are, essentially, statements of what is and the provisions in a contract should always apply to the current situation (i.e. to what is), they should be drafted in the present tense. Unfortunately, they often get drafted or translated either in 1. the future tense or 2. the false imperative.
1. The future tense:
Let’s look at the following provision:
The laws of the State of California shall govern this agreement.
As drafted, this provision is technically saying that the laws of the State of California will govern the agreement at some unstated time in the future. But imagine it’s been three years since the agreement was executed and a dispute arose today, the parties would need to know what law governs the agreement today. So, it makes more sense to draft this as:
The laws of the State of California govern this agreement.
If you compare this to the sample provision I used to illustrate when to use will in item 2 above, you’ll notice just how much meaning future versus present tense can carry. In the example in “2,” we wanted to indicate a future date (i.e. “the date referenced in paragraph eight of this Agreement” and “the earlier to occur of”). In the current example, we want to indicate that the law governs the agreement now.
This particular example illustrates what Adams refers to as “language of policy,” i.e. “rules that the parties must observe but that don’t, at least expressly, require or permit action or inaction on their part” (Adams 2013). His recommendation, to which I adhere, is to use the present tense for policies that apply to the effectiveness of a contract (e.g. applicable law provision) or for policies stating a time of effectiveness or lapsing of effectiveness, but will for language of policy related to future events, regardless of whether the timing is certain or not.
2. The false imperative
Strictly speaking, the imperative is not a verb tense, but “a mood reflecting a command or request of the speaker” (Hodges 1994). The false imperative gets its name from the fact that it imposes an obligation on a subject that could not possibly carry out that obligation. In the case of contracts, the most common example of the false imperative is when, instead of a party being obligated to do or refrain from doing something, the Agreement itself is:
This Agreement shall inure to, and be binding upon, the parties and their respective successors and assigns.
The problem with this clause may not be obvious to the untrained eye, but if you think about it, the subject is “the Agreement” and “the Agreement” cannot be obligated to do anything. “The imperative ‘shall’ should only be used when someone is being compelled to do something… [I]f no person is mentioned, the imperative form is incorrect” (Dick 1995). This provision makes a lot more sense as a statement of fact in the simple form:
This Agreement inures to, and is binding upon, the parties and their respective successors and assigns.
Like many other legal writers, I’ve come to realize that, despite my personal views, shall is not going anywhere. People are going to keep using it no matter how many times they are advised not to. But there’s a thin line between use and abuse. Used excessively, shall can cause problems in both the language of contracts as well as in that of statutes (though that’s a topic for another post). As legal practitioners, the better we write, the better we serve our clients. So, if we can prevent confusion and misunderstandings by toning down our use of shall at least one notch, then we should.
Adams, Kenneth A. 2013. Manual of Style for Contract Drafting. Chicago: American Bar Association.
Dick, Robert C. 1995. Legal Drafting in Plain Language.
Garner, Bryan A. 2011. Garner’s Dictionary of Legal Usage. New York: Oxford University Press.
—. 2002. The Elements of Legal Style. New York: Oxford University Press, Inc.
Hodges, Horner, Webb & Miller. 1994. Harbrace College Handbook.
Perillo, John D. Calamari & Joseph M. 1998. The Law of Contracts.
Willinston, Samuel. 1957. A Treatise on the Law of Contracts.