“Shall” Shocked: The use of shall in legal documents

“Shall” is an interesting and peculiar word. Why would I describe a five-letter, commonplace, monosyllabic word like that?

Shall is a peculiar word because it is the most frequently used modal verb in legal drafting.

In English grammar, shall is one of the “modal verbs” (also called “helping verbs”) like can, will, could, shall, must, would, might, and should. The purpose of a modal verb is to add meaning to the main verb in a sentence by expressing possibility, ability, permission, or obligation. For example, “You must complete this task on time”; “He might be the inspiration for my life”; “The doctor can see you now”. “Shall” is an interesting word because in ordinary English, it is the least used modal verb. The most common ones are will, may, can, should, and would.

“Shall” dominates legal drafting

For long, shall has been a favourite of lawyers. Its use in legislation and in legal documents is all pervasive. As a young lawyer, one of the first things drilled into me was that “shall” is the most important modal verb to refer to future action and is the word to be used when imposing a mandatory obligation. So, I was told to imagine substitution of “shall” in a sentence with the words “has a duty to”. For example, “the Company shall deliver 100 widgets within 90 days”, indicates the intent that - “the Company has a duty to deliver …”. It read perfect.

But many a time, this yardstick did not work, as the intended meaning got distorted, and confused. For example, if the substitution rule is applied in the sentence: “The employee shall be reimbursed all expenses”, you would get: “The employee has a duty to be reimbursed all expenses”. This created ambiguity for the simple reason that the intent appeared to state an entitlement of the employee and not to impose a duty on the employee. To correctly state the intent, the sentence could simply have read “The employee is entitled to the reimbursement of expenses”.

Take a typical governing clause in an agreement which typically reads: “This Agreement shall be governed by the law of India.” If “shall” is considered to mean “has a duty to”, the sentence would read: “This Agreement has a duty to be governed by the law of India.” The intended meaning is not to impose any obligation, but it is to state a fact. When I questioned why we would not simply say “This Agreement is governed by the law of India”? I was told to just follow the rule – shall is king!

“Shall” is used indiscriminately in legal drafting

From a modest beginning in legal drafting as a modal verb describing a mandatory obligation of the subject (the person performing the action of the sentence), shall rapidly spreads like a dreaded virus through indiscriminate use – in contexts different from just those which impose a duty. Here are some examples of different contexts in which “shall” is frequently used in language of the law:

• To impose a duty (“The Company shall maintain quality standards…”)

• To grant a right (“The Buyer shall have the right to cancel the purchase transaction…”)

• To give a direction (“The shipment of the products from the port shall be deemed as delivery of the products to the purchaser.”)

• To negate a duty or discretion (“The Company shall not be required to produce copy of the specifications.”)

• To negate a right (“Such statement shall be deemed to be correct and shall be binding on the Applicant.”)

• To express intention (“The manufacturing plant when established shall be deemed to be part of the assets of the joint venture.”)

• To create a condition subsequent (“If the products shall not have been delivered on or before December 31, 2020, then this purchase order shall stand cancelled.”)

• To state or declare a fact (“Company shall mean ABC Limited.”)

• To express the future (“This Agreement shall terminate on the sale of the warehouse.”)

“Shall” changes its meaning more than a chameleon changes colour; thus, it has large potential to violate basic principles of drafting

Black’s Law Dictionary lists the following five meanings of shall:

shall, vb.

1. “Has a duty to; more broadly, is required to “the requester shall send notice” “notice shall be sent”. This is the mandatory sense that drafters typically intend and that courts typically uphold.

2. Should (as often interpreted by courts) “all claimants shall request mediation”.

3. May “no person shall enter the building without first signing the roster”. When a negative word such as not or no precedes shall (as in the example in angled bracket), the word shall often means may. What is being negated is permission, not a requirement.

4. Will (as a future tense verb) “the corporation shall then have a period of 30 days to object”.

5. Is entitled to “the secretary shall be reimbursed for all expenses”.

Two basic principles of drafting are:

(i) A word used repeatedly in a document is presumed to bear the same meaning throughout, and

(ii) avoid using the same word or term in more than one sense. When a word takes on too many senses and cannot be confined to one sense or meaning in a document, it becomes redundant to the drafter and to the reader .

To put it differently, a good draftsperson always expresses the same idea in the same way and always expresses different ideas differently. And she makes sure that each recurring word or term has been used consistently. With minor exceptions (that is where it is used to truly describe a duty of the first person subject of the verb), “shall” usage in the language of the law violates these basic principles.

Lawyer’s habit of “future tense” writing creates further confusion

Another peculiarity of legal writing is that lawyers tend to write in the future tense and liberally deploy shall for that purpose. Here are two typical “future tense” examples from an agreement:

“Company” shall mean ABC Limited, a company registered under …

If the Buyer shall learn that the Seller shall have leased the property ….

Shall here is used in the futurity context (note that if we apply the “has a duty to” rule – the text would become laughable. For example: “If Buyer has a duty to learn that the Seller has the duty to have leased the property…).

Written in present tense, we eliminate the shalls. In present tense, the text reads:

“Company” means ABC Limited, a company registered under …

If the Buyer learns that the Seller has leased the property ….

Why do lawyers not write in the present tense? One explanation is that the lawyer believes that she is writing for the future and therefore she should write about things as if they will occur in the future! But that is a wrong premise. The usual interpretation rule is that a document speaks constantly. And when a document is read in the future (for example, when its terms are being implemented), by that time the future will be then present! So, it makes more sense to draft in the present tense and get rid of unnecessary shalls which confuse the meaning.

Thus, contrary to lawyers' belief, shall does not have a single firm meaning

Contrary to our belief, shall does not, even remotely, have a settled firm meaning. Because of its inconsistent use in contexts other than casting a duty, shall has been interpreted by the various courts to mean “must”, “should”, “will”, “may” or “is”.

Shall is one of the most corrupted and litigated words in the language of the law. Over 100 pages in the encyclopaedia of Words & Phrases are devoted to a summary of more than 1,300 precedents from common law jurisdictions interpreting shall! This misuse or abuse of shall extends to legislation and private legal documents in equal abundance.

Courts struggle to interpret shall

Courts from jurisdictions all over the common law world have struggled to interpret shall. Here are a few examples from the Supreme Court of India.

• In State of UP v. Manbodhan Lal Srivastava, while examining the terms of Article 320, the Court observed,

  “….the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect….”

• In Khub Chand v. State of Rajasthan, the Court held:

  “Doubtless, under certain circumstances, the expression "shall" is construed as "may". The term "shall" in its ordinary significance is mandatory … unless such an interpretation leads to some absurd or inconvenient consequences…..”

• In State of Punjab v. Shamlal Murari, the Court opined:

  “The use of “shall” – a word of slippery semantics – in a rule is not decisive….."

Here are a few precedents of the US Supreme Court, some going back 150 years:

• A legislative amendment from “shall” to “may” had no substantive effect. (Moore v. Illinois Central Railroad Company)

• If the government bears the duty, the word “shall” when used in statutes is to be constructed as “may”, unless a contrary intention is manifest (Railroad Co v. Hecht)

• “Shall” means “must” for existing rights, but that it need not be construed as mandatory when a new right is created (West Wisconsin Railway Company v. Foley)

Shall is recognized as an ambiguous word and drafters are avoiding its use in many jurisdictions

Shall is an ambiguous and confusing word. Most of its usage in legal documents is inappropriate and imprecise. It is also not much used in contemporary language. Drafters in many common law jurisdictions are adopting “shall-less” style. Here are some examples of shall-less drafting from the United States of America, Australia, United Kingdom, and South Africa.

• US Federal Government’s Style Subcommittee decided to abandon ‘shall’

• US Federal Rules of Appellate Procedure and of Criminal Procedures have been restyled to be ‘shall-less’

• US Federal Rules of Civil Procedure restyled – without any shalls

• The restyled Federal Rules of Evidence became effective with no ‘shall’

The Plain English Manual released by the Office of Parliamentary Counsel, Australia notes that while the traditional style uses ‘shall’ for the imperative, the word is ambiguous, as it can also be used to make a statement about the future. The Manual recommends:

• Use “must” or “must not” when imposing an obligation, instead of ‘shall’ or ‘shall not’

• If you feel the need to use a gentler form, say “is to” or “is not to”, but these are less direct and use more words.

• We shouldn’t feel any compunction in using “must” and “must not” when imposing obligations and prohibitions.

The Australian Corporation Tax Act, 2009 does not have ‘shall’ in its substantive provisions.

The UK Office of Parliamentary Counsel’s Drafting Techniques Group has a published policy on ‘shall’ which prescribes the minimum use of the legislative ‘shall’.

The rewritten South African Constitution is completely “shall less”. ‘Shall’ has been replaced by ‘must’ or by the present tense, wherever, ‘shall’ appeared as an expression of futurity in the earlier, interim Constitution.

Let us banish shall from legal writing

Shall is an overworked, outdated, and largely misused word in legal writing and should be avoided. We lawyers will be hard put to use it correctly or consistently. It is best to dump it altogether in the heap of outdated words. Simple convention could be adopted where we use the correct and most appropriate modal verb in our writing. Further, writing in present tense helps. It also helps to revise the text to avoid use of shall. Here is the suggested way forward of using modal words other than shall and of avoiding use of shall in different contexts:

Why remain “shall” shocked? Make your writing crisper, clearer, and better by using a contextually more appropriate modal verb in place of the troubled and troublesome “shall. Try it.

The author is the Chairman & Founder of J Sagar Associates, Advocates & Solicitors.