Shall - a horrible little word, legally speaking.
The word 'shall' is often used in legal documentation. Or, I should say that the word 'shall' is often misused in legal documents.
'Shall' means 'have a duty', an obligation to do something. But in legal documents the real meaning of the word 'shall' can become confusing. In various court cases 'shall' has been held to mean: may, must, will and is (Source: Legal Writing in Plain English, Bryan A Garner).
When you draft a legal document, avoid 'shall'. Do not use this misleading word. Use, instead, 'must' for obligation and 'may' to indicate that someone can decide to act or not. Note that in contractual documents, 'will' is more often used than 'must' to express obligation. (Although 'must' is much clearer, in my considered opinion.)
You have been warned. You shall obey.
2 comments:
Dear Alex
As an editor at a law firm, the (mis)use of shall is the bane of my life. However, I'm not sure your blog covers all the pitfalls and dangers; not only of shall but also of using the alternatives you list.... what about conditions? what about future facts? I'm also not sure that I would advocate deleting shall entirely. It does have its uses does it not?
Hi Jo,
The post on 'shall' is very brief - and I know it can be used correctly. As you know though, not many people (including lovable lawyers) really know how to use the word correctly.
How about you giving me some examples, in a legal context, of the usage of 'shall' for conditions and future facts? Clear examples which are unlikely to cause judges headaches.
Over to you.
Best,
Alex
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