An instructor in contract drafting once condemned a contract term I had written:
Party B will pay Party A £25,000 by 30 September.
“You haven’t created an obligation,” he told me. “To impose an obligation, use shall, not will.” I protested that, when A sued for the £25,000, B would need a better defence than: “The contract only said I would pay A the money – it didn’t say I had to”. The trainer, a former partner in a City of London law firm, insisted. “A contract needs to say shall, not will.”
Problems with shall
When I came to study plain English, I found that shall was widely condemned. Legal Usage – A Modern Style Guide says shall “reeks of legalese”. The book devotes the next six pages to explaining the various things that, rightly or wrongly, shall might mean in legal writing, in addition to an obligation.
For example, here is a long and wordy sentence from a lease:
If the Landlords shall fail to exercise their right to require the rent payable hereunder to be reviewed within the relevant period prescribed in paragraph 1(1) hereof or in the event that by the relevant date of review the Landlords and the Tenants shall not have reached agreement and the valuer (if appointed) shall not have given his decision provided for in paragraph 2 hereof then the Tenants shall continue to pay rent at the rate of the rent payable before the relevant date of review on each day appointed by this Deed for payment of rent until agreement shall be reached or the said decision shall be made whichever shall first occur.
Of the seven shalls in this sentence, only one imposes an obligation (to continue paying rent at the old rate).
If you change every shall to will, the same is true; only one imposes an obligation.
(Changing shall to will also makes the other six wills sound strange, because nobody ever says until agreement will be reached. That’s how strange the original shalls sound to many non-lawyers.)
Can I rely on shall to create a contract obligation?
No. When you draft a contract you cannot be sure that every use of shall creates an obligation, especially if the context and commercial purpose support another interpretation.
One risk is that you may undermine an obligation drafted with shall by using shall again in another sense, providing fuel for an argument along these lines:
- Party: Excuse me, Otherparty, you are in breach of clause X.
- Otherparty: No, clause X says I shall do something, but look at clauses Y and Z, where shall doesn’t impose an obligation. I contend that clause X is only directory, not mandatory. That makes commercial sense, considering the context, because …
Example: shall expressed permission, not obligation
… all lots uncleared within the time aforesaid shall be resold by public or private sale …
In contract terms for a sale by auction, the court held that these words were permissive, not mandatory. Counsel had pointed out that this phrase was sandwiched between two others in which, he said, shall was clearly permissive.
Robinson, Fisher & Harding v Behar [1927] 1 KB 513
Even if you use shall consistently in the contract, shall might still be given one of its other possible meanings.
Example: shall expressed intention, not obligation
… Motorplus Ltd shall refer a quantity of [specified type] claims to PM Law Ltd Solicitors …
The judge decided, and the Court of Appeal confirmed, that this phrase did not require Motorplus to refer any claims to PM Law, mainly because of the context:
- No required quantity of claims was specified.
- The previous contract had not required either party to refer or accept any claims.
- The reason for the new contract was not to introduce a new commitment, but to change other terms to comply with new rules on referral agreements.
PM Law Ltd v Motorplus Ltd [2018] EWCA Civ 1730, paragraphs 10, 13 to 22, 25 to 27
Is will any better for creating contract obligations?
Will has one advantage: it is still common in everyday English, unlike shall. In British books, there are at least seven wills for every shall. In American English, the Oxford English Dictionary tells us “the word shall is now seldom used in any normal context“.
But will and shall are both vulnerable to the interpretations just discussed, because both have other uses besides creating obligations. And it’s arguable that, at least in the third person and in older documents, the literal meaning of will lacks the coercive force of shall.
What do you mean, “in the third person”?
From the 18th century to the 20th, a rule of grammar swapped the meaning of will and shall according to the “person” involved. The rule was never universally observed and has now almost disappeared. The Oxford English dictionary advises today that “the two words are used more or less interchangeably“.
The old rule gave shall and will these meanings:
- I, we (first person) … will (obligation) … shall (future intention)
- You, he, she, it, they, the Party (second or third person) … will (future intention) … shall (obligation)
Knowing this old rule helps to explain this scheme of contract drafting, sometimes found in standard terms:
- We (the supplier) will do xxxxx.
- You (the customer) shall do xxxxx.
So why do we always say shall in contracts?
Actually, we don’t always use shall, even in long written contracts.
For example, the NEC form of construction contract is widely used and recommended for building projects. It famously uses only one shall and expresses every other obligation as a narrative, like this:
The Contractor decides the date of Completion. The Contractor certifies Completion within one week of Completion.
Or take the Simple Works Contract for Housing in Western Australia, drafted with must:
Obligations of the owner
The owner must …Obligations of the contractor
The contractor must …
You can even create obligations without verbs, as in this extract from a contract for sale of goods:
Sellers: Messrs. W. J. Alan & Co. Ltd., Nairobi.
Buyers: Messrs. El Nasr Export & Import Co., Dar es Salaam.
Quantity: 250 tons.
Price: Shs. 262/. (two hundred sixty-two) per cwt. of 112 lb. nett f.o.b. Mombasa.
Shipment From Mombasa: During September 1967/October 1967 at sellers’ option …
(You don’t even need words. You can create a binding contract by pictures, gestures, or behaviour. But that doesn’t help choose words for a written contract.)
OK, what about must? Does must impose a contractual obligation?
To create an obligation, I learned, the best word was must. It’s a familiar word expressing obligation. It doesn’t normally express future intention.
Since at least 2010, official guidance for drafting UK legislation has been to prefer must where possible or, failing that, is to: Office of the Parliamentary Counsel Drafting Guidance (2010), section 2.1, paragraphs 17 to 19. Similar guidance from the Federal Aviation Administration in the USA also extends to contracts.
Does drafting with must guarantee that every use of the word creates an obligation every time? Sadly, no. Drafters can still write in the passive voice, creating an obligation without necessarily identifying which party must perform it. Or they may appear to impose an obligation on someone who isn’t a party to the contract, which is impossible in English law. And, since context and commercial purpose can still occasionally outweigh literal meaning, even must could be interpreted as meaning something else. But it’s the best I can suggest.
But shall sounds better in contracts
When I came to teach contract drafting myself, I discovered that most of the lawyers I taught shrank from writing anything so bossy (and unfamiliar) in their contracts as this:
A must pay B £25,000.
I compromised. Draft your contract with must, I said, because then you will be sure to use it only to create obligations. And then, when you are ready, replace every must with shall. You will at least have used shall consistently to create obligations and nothing else.
But think. Who has to use your contract? Does shall work as well for the users as it does for you? Do the users appreciate the familiar language of your contracts, finding it saves them time in review and negotiation and promotes goodwill between the parties? Or is shall (and maybe other writing habits) working against you? As you labour to deliver timely, commercial and watertight contracts, does your work product whisper something along these lines, undermining your client relations and marketing messages?
We are lawyers, you are not. We don’t speak your language. If we understand your needs, we don’t care about them. Live with it.
If that’s the subtext to your contracts, it’s time to think again about must and will.
Action
- Comment on this post to share your experience of drafting with must, shall and will.
- Draft with must, even if you change it to shall or will in the final version.
- Read the book Clarity for Lawyers for more ways to achieve user-friendly contract drafting.
- Follow the blog.
Picture credit: Thanks to Gilbert & Sullivan Austin for the picture at the top of this blog post, taken from their performance of Come Mighty Must, Inevitable Shall.
must is too rough to be used in contractual obligations, I teach contract drafting and I find it rebelling as it gives the feeling that something is imposed like law, while contracts is consensual , shall is better in some contexts while in others using phrases like obligate to , responsible for or any other form except liable for is better for obligations , must be used in some conditions for obligations like in conditions precedents, also in legislation but not mainly in contracts
Many drafters apply rules like these. What I find helpful is to understand the reasons to prefer one word or another, from the contract user’s point of view.
I really learn a lot from here, all the wisdom shedding the light on how the implications between the lines could be. But, could SIMPLE PRESENT TENSE (SPT) be the antidote for the rescue? SPT is considered as the MOST DIRECT expression of “what the outcome should be,” and is factual.
Take the following as an example,
“Certificates of Compliance by the manufacturers shall be submitted for Engineer’s approval.”
Now the rewrite,
“Certificates of Compliance by the manufacturers ARE submitted for the Engineer’s approval DURING THE BASIC DESIGN PHASE.”
Does that sound odd or bring up a whole different game? I am all ears, and thanks a lot.
Yes, that is the drafting style of the NEC form of building contract. In the blog post, I called it “expressing obligations as a narrative”.
Anything sounds odd if you’re not used to it. “Shall” sounds odd to non-lawyers. So, to decide how best to write a contract, the test is not “Does it sound odd?” but “Is it ambiguous” and “Does it help the contract users to understand and comply?”
The writers of NEC contracts point to business and government organisations who have made NEC terms their preferred form of building contract, as evidence of how well these terms work for the parties: see https://www.neccontract.com/About-NEC/Endorsements.
Your rewrite removed “shall” and also improved on the original by identifying the time for performance. Is it relevant to ask who is to submit the certificates, or would it be obvious, in context? Because, even in the simple present tense, this obligation is still in the passive voice (what is done), not the active voice (who does what). See How and why to avoid passive verbs.
Thank you for your kind comment.
I regret that I find this controversy artificial. No one is confused by the use of “shall” or “will”. Use of “must” in legislation, let alone commercial contracts, sounds as if one were speaking to a child.
This is an excellent and thought-provoking post. Thank you.
The language of obligations has generated a lot of heat, and very little light, in numerous blogs and articles. Luminaries as esteemed as Ken Adams (MSCD) and Bryan Garner haven’t really lifted the fog. They’ve just blown it around a bit more.
I take your point about ‘must’ not necessarily being an obligation-creator, particularly in relation to its use in the passive voice. It needn’t even create an obligation in the active. “I saw an excellent film last night. You really must see it.” Here, ‘must’ is being used in the sense of strong recommendation, rather than an obligation in the strict sense. Or is it? Anyone got a very strong fan?
Mark
This was a really interesting post. I have a follow up question, do the words, “has to” create a contractual obligation in the same capacity as “must”?
You are right, the literal meaning of the words “has to” is to express an obligation, using modern English, like “must”.
The only reason to doubt whether these words always create an obligation is that context and business purpose, as well as literal meaning, are relevant to contract interpretation. Drafters sometimes use the language of obligation to create descriptions or suggestions, as well as obligations, in their contract terms. Again, the same is true of “must”, “shall”, or other wording.
I particularly enjoyed this post, very useful. It reminded me of our old Latin teacher, who used to tell the story of the man swimming in the sea, who shouted “I will drown and nobody shall save me” and nobody did! Rather a high price to pay for getting your grammar wrong!
“Contracts are not essays; there are no points for synonyms, just the risk of costly litigation” – what a brilliant summary!
My impression from litigating Australian contracts is that “shall” is well on the way out here, but “will” is still used very widely in circumstances where “must” would be more appropriate. Current drafting shows much less squeamishness in the use of “must”, but as a litigator I often have to deal with years-old contracts which are less likely to use such direct language.
Thanks for highlighting this, Daphne. It seems that despite the progress that has been made in using ‘must’ in legislative drafting, most commercial contracts still use ‘shall’ for obligations. For me, one of the most important points you make is about consistency. In one draft contract I reviewed there were 3 consecutive clauses which began: ‘[Party A] agrees to…’, ‘[Party A] commits to…’, ‘[Party A] will…’. Did all these clauses impose obligations on Party A? I had to check with the drafter as in other parts of the contract, ‘shall’ was used for obligations. I suggested that the drafter decide which word to use to impose an obligation and then to stick with that word throughout the contract. Contracts are not essays; there are no points for synonyms, just the risk of costly litigation!