The following article was prepared by Mike Taylor, C.P.M., for distribution to ISM affiliate newsletters.


“Will” vs. “Shall” Which to use?

Even lawyers disagree about the proper usage. I suppose it gives them something to do to earn their fee.

In contract writing, we typically use the word “shall” to indicate an obligation of the contractor and “will” to indicate an obligation of the buyer. I’ve heard several opinions that, as long as the usage is clear, it may not make much difference which word is used. I can wrap my head around that by thinking of it this way.

A typical contract spells out obligations of both the buyer and seller. Precise identification of those obligations is expected. As long as the wording does not confuse who has the obligation and who is obligated, then it’s going to be hard to claim that obligation does not exist just because the contract mixes up the words “will” and “shall”.

e.g. Contractor will/shall perform the service on October 5, 2013. –[seems pretty clear to me regardless of which word is used.]

Another way to look at it; we could create a bulleted list of obligations and avoid both words altogether, thus either word isn’t really too important – as long as the obligations are clear.

e.g. Contractor obligations: 1) perform the service on October 5, 2013, 2)…….

That being said, I do prefer the way “shall” sounds when it prescribes an obligation of the contractor. I also prefer “will” when it describes an obligation of the buyer.

The following articles provide several more examples and also point out that “shall’ is often misused.  According to the articles, “shall” must be used to impose a duty on a capable actor. That is, “shall” has to direct “someone who can perform that duty”.

e.g. “Contractor shall deliver on October 5, 2013” is correct. [shall clearly refers to the contractor] “Delivery shall be October 5, 2013.” is wrong. [the capable actor is missing]

The authors suggest several ways to try and determine if “shall” is used correctly. Replace the word “shall” with “must” or “ agrees to” and see what happens to the meaning. If it sounds wrong, then “shall” might have been misused in the first place.

Of course those substitutions lead to different problems.

  1. Are you trying to describe a “condition” of the contract or a performance obligation of the contractor? [e.g. are you specifying a certain form be used to submit a dispute (if needed) or requiring that the contractor submit the form as part of contract performance?]

  2. Are you describing a future performance obligation or an event that is codified by the contract?

e.g. contractor agrees to transfer [...when?]  vs. contractor hereby transfers. I know the distinction sounds thin, but there have been legal cases arguing exactly this point.

Here is one article.

http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005/05/shall-vs-will.html 

Lots more comments and suggestions about writing on his web site. I’d suggest adding a link to this web site to your reading folder and spend some time there when you can.

http://blogs.utexas.edu/legalwriting/category/legal-drafting/

Here is another web site with many interesting articles regarding contract writing.

www.adamsdrafting.com  Making Sense of “Shall,” New York Law Journal, Oct. 18, 2007.

 

Mt


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