Shall We Strive for More Clarity and Remove Shall from Our Contracts?

Background

“This word is complicated.”^[1] The Oxford English Dictionary entry for the word shall is over five pages long. Black’s Law Dictionary reports at least five distinct, and sometimes contradictory, meanings for the word including has a duty to, should, may, will, and is entitled to. And courts have interpreted shall to mean must, may, will, and is among others.^[2] In short, shall is complicated because it is vague.^[3]

At one time, the consensus was to use shall to convey futurity in the first person (I shall soon turn 40) and will to convey futurity in the second or third person (you will mock my age). If the intent was to convey a determination, promise, or command, the usage was flipped—will for first person (I will pay you back) and shall for second and third person (you shall pay me back with interest).^[4] However, this paradigm was abandoned long ago.

Today, regardless of the grammatical person, futurity is almost always conveyed using will. Determinations, promises, and commands, meanwhile, are conveyed using any number of words. The contemporary shall is generally used only in (1) light-hearted, first-person propositions (shall we dance), a rare case, or (2) written statements of legal requirement (the licensee shall pay the licensor), a rampant use.^[5]

The problem with the use of shall in legal documents is that it is often used inconsistently and must therefore be interpreted inconsistently or else incorrectly. A key principle in legal construction is that “a word used repeatedly in a given context is presumed to bear the same meaning throughout.”^[6] Often, shall is used to mean has a duty to (the licensee shall pay the licensor). But it is also frequently used to mean must (the price shall follow the agreed upon index) or even may (neither party shall assign this agreement).

There are several solutions to the shall problem. For instance, the careful drafter could choose to use shall consistently and exclusively to convey a single desired meaning. According to the “American rule” for dealing with shall, the word should be used to convey only the meaning has a duty to.^[7] Perhaps more practicable, the legal drafter can circumvent the shall problem entirely by abandoning the word. This approach has become known as the “ABC rule” because it was first advocated by Australian, British, and Canadian drafters.^[8] It subsequently gained popularity in the United States. For example, shall has been removed from most sets of federal rules, including Civil, Criminal, Appellate, and Evidence rules. And Bryan Garner, editor-in-chief of Black’s Law Dictionary and well-known author and speaker on legal writing principles, agrees, encouraging contract drafters to “[d]elete every shall.”^[9]

Under the ABC approach, a legal drafter might replace shall with must, is, will, may, or some other term that best reflects the contract’s intent. To express a legal requirement in a contract, must is often a preferred substitute because, unlike shall, must cannot be used to express futurity, making it less prone to misuse.^[10]

Strategy and Conclusion

Shall might have once been a sharp tool for parsing grammatical personhood while creating a legal duty, but the more modern approach—especially for the cautious practitioner—may be to remove shall from the legal drafting toolkit and replace it with other simpler phrases, such as must or has a duty to. Of course, where shall is used, practitioners should strive to use it consistently and clearly.

Endnotes

[1] Shall, The Chicago Manual of Style ¶ 5.250 (17th ed. 2017).

[2] Bryan A. Garner, Legal Writing in Plain English: A Text with Exercises 125 (2nd ed. 2013) (collecting exemplary cases).

[3] D. Patrick O’Reilley & D. Brian Kacedon, Drafting Patent License Agreements 11 (9th ed. 2020) (“Perhaps the epitome of vagueness is the word ‘shall.’”).

[4] Bryan A. Garner, Garner’s Modern English Usage 824-25 (4th ed. 2016); Kenneth A. Adams, A Manual of Style for Contract Drafting, ¶ 3.19 (2004).

[5] Garner, supra note 4, at 825; The Chicago Manual of Style ¶ 5.131 (17th ed. 2017)

[6] Bryan A. Garner, Garner’s Dictionary of Legal Usage 952 (3rd ed. 2011).

[7] Adams, supra note 4, ¶ 3.22.

[8] Id.; Adams, supra note 4, ¶ 3.22.

[9] Garner, supra note 2, at 125.

[10] Adams, supra note 4, ¶ 3.23.