It’s 2020 – isn't it time to ditch "shall" from your legal documents?
The first clue that you are reading a contract is usually the word shall. It’s a word most people use rarely in everyday speech, but it is common in legal documents. Why is that?
For the most part, I think shall has had its day. And there are at least two good reasons to stop using it in drafting legal documents.
First, misuse and overuse of shall is common. Using the same word in a variety of ways within the same document can yield unpredictable results. For example, courts have found shall to mean must, should, may, will, or is entitled to.
Second, it’s dated. Shall-filled writing is stuffy, tiresome to read, and less accessible than more modern styles. People don't speak like that anymore. There’s no reason to write like that either.
Happily, it's simple to eliminate shall from your writing.
Overuse = ambiguity
When shall is overused it can be uncertain what the word is intended to do. Consider the following examples:
“If [some event happens], then the Customer shall be entitled to a refund.” Here, shall is used to create an option.
“This agreement shall come into force on 3 February 2019.” This creates neither an obligation nor an option.“The Contractor shall deliver the Products to [address].” This creates an obligation for a specific party to do a specific thing.
A disciplined drafter might reserve shall only for the last case. In my experience, most drafters are not disciplined enough to do this consistently - myself included.
Consider your audience
Ask yourself who is going to use the document most. Usually it will be someone who is not accustomed to legalese, so spare a thought for that reader. The more flowery and formal your drafting style, the less usable the document is for the people most likely to read it.
Also, think about this: worldwide, non-native English speakers outnumber native speakers by something like two to one. Even if you live in a majority English-speaking country, non-native English speakers are common.
Simple and direct writing removes avoidable barriers to understanding. That's good for your clients and their customers.
But I draft with the judge in mind
Great! So do I, but without using shall. Give judges some credit - if your clients can understand what you write, so can they.
Tip #1: use the present tense
Contracts usually deal with future or conditional events. However, they mostly do not need to be written in future or conditional tenses.
You can save a lot of grief by drafting in the present tense by default. The present tense yields clear, concise sentences. It also eliminates the overuse of shall automatically. The result will be a lot more readable. This is particularly true for non-native English speakers, since it’s typical to start with the present tense when learning a new language.
Tip #2: try using must – it’s clearer
You can always create a clear obligation by using must instead of shall.
To be fair, this option has detractors. Some believe the word must can make documents seem a bit shouty. However, I think this concern is misplaced.
Must can take on a harsh tone if it's used to emphasise certain obligations while "softer" words are used for less important ones. But if must is the only word you use in a contract to impose obligations, it loses that sting.
It's also totally clear. “You must do X” means that X is a required action, not an optional one. There’s no debate and everyone knows where they stand.
Try it. If the reader finds your writing rude, replacing must will not fix it. Something else is wrong with the drafting.
Example from a real contract
Below is a relatively simple but typical example of overusing shall.
All products shall be sold by the Supplier FCA (at the Supplier’s factory, Incoterms 2020). Delivery dates indicated on quotations shall be approximate only. Early and/or partial deliveries shall be permissible. Buyer shall acquire legal title to products upon payment and shall assume risk for the products upon delivery.
This paragraph is tedious – just imagine slogging your way through 50 pages written in this style. Worse, shall is being used a few different ways in the same paragraph. Why do that when you could rewrite it like this instead?
The Supplier must deliver the products FCA (at the Supplier’s factory, Incoterms 2020). Delivery dates indicated on quotations are approximate only. Early or partial deliveries are permitted. Risk for each product transfers to the Buyer upon delivery. Legal title to each product transfers to the Buyer upon payment.
It's clear and direct. It’s not rude or pushy.
Most importantly… it’s 2020. 😉
Trevor Fenton is founder of Fentons, a commercial law firm serving small and mid-sized business in Dundee, Scotland and Vancouver, Canada.