Monday, May 16, 2005

"shall" vs. "will"


What is your opinion on "shall" vs. "will" in contracts?

These words have different meanings but both can be used effectively in contract drafting as long as you're careful about your usage.

Did you know that "shall" is the most misused word in all of legal language? It is. In the current edition of Words and Phrases, "shall" alone is followed by 109 pages of case squibs, and "shall" phrases cover 45 more pages. Yet its misuse is one of the most heavily repeated errors in all of law.

Here's where lawyers go wrong: When "shall" is used to describe a status, to describe future actions, or to seemingly impose an obligation on an inanimate object, it's being used incorrectly. For example, all of these are wrong:
  • Status: "Full capacity" shall have the following meaning . . .
  • Future action: If . . . then the contract price shall be increased . . .
  • Faulty imposing of obligation: The remaining oil shall be sold by lessee . . .
To correctly use "shall," confine it to the meaning "has a duty to" and use it to impose a duty on a capable actor. Bryan A. Garner, A Dictionary of Modern Legal Usage 940–941 (2d ed., Oxford U. Press 1995). Here's how:
  • Lessee shall sell the remaining oil . . .
In other words--
  • Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .
Some suggest that lawyers are incapable of using "shall" correctly, so we ought to banish it entirely. Michèle M. Asprey, Shall Must Go, 3 Scribes J. Leg. Writing 79 (1992). One recommendation is to use "must" instead. Of course, you cannot search and replace every "shall" with "must." Scrutinize each use carefully.

You can use "will" to create a promise--a contractual obligation. See Bryan A. Garner, A Dictionary of Modern Legal Usage 941-942 (2d ed., Oxford U. Press 1995). When used in this way, "will" is not merely stating a future event, it is creating a promise to perform:
  • Landlord will clean and maintain all common areas.
You could use "shall" for the other party's obligations and "will" for your client’s obligations, though the effect of these words should be the same. The difference reflects only the impact on the reader.

In most basic contracts, I recommend using "will" to create obligations, as long as you are careful to be sure any given usage can't be read as merely describing future events. I'm generally against "shall" because it is harder to use correctly and it is archaic. But not everyone agrees with me. Kenneth A. Adams, A Manual of Style for Contract Drafting 24-25 (ABA 2004). Adams prefers using "shall" as long as it's used correctly.

See also Joseph Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992)

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