Jul 17, 2006 10:43
17 yrs ago
25 viewers *
English term
Denmark
Cert. Dan-Eng, MA Translation, Est. 1992
Native in: English (Variants: UK, US) 
Works in: Danish to English, Norwegian to English, Swedish to English, and 3 more.
shall vs. will
English
Law/Patents
Law: Contract(s)
I am curious to hear others' comments about the use of shall, will and must in contracts. I recently saw an interesting, and surprising, commentary on the matter:
http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005...
http://www.utexas.edu/law/faculty/wschiess/legalwriting/2005...
Responses
| 3 +5 | I think the use of "shall" to express obligation is OK |
David Knowles
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| 4 +1 | Hooray! |
Tony M
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| 4 +1 | My 2 cents |
jccantrell
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| 4 | Comment from the dictionary |
kmtext
|
Responses
+5
15 mins
David Knowles
Native in English
&
English
Specializes in field
Specialist in Civil Law & Contracts
Native in: English
Works in: Russian to English, English, Ukrainian to English
Related KudoZ points
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16
Selected
I think the use of "shall" to express obligation is OK
I don't really buy the distinction between animate and inanimate that's made in the article you refer to. "In this contract X shall mean" seems perfectly OK to me. The use of "will" to express obligation is likely to cause confusion.
It's perfectly true to say that "shall" is not really necessary, and could often be replaced by "must", or by the simple present tense. So, you could say "In this contract X means" without any loss of clarity.
For a long time there have been moves to simplify legal language, and they gradually cause changes, but very unevenly. Your article is an example of this.
(As an aside, I once read that "kill" requires an animate subject. I immediately scribbled "Curiosity killed the cat"!)
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Note added at 49 mins (2006-07-17 11:33:00 GMT)
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I'm writing from a UK perspective. One area of difference is that the UK has recently tried to replace all Latin terms, whereas I don't think the US has.
It's perfectly true to say that "shall" is not really necessary, and could often be replaced by "must", or by the simple present tense. So, you could say "In this contract X means" without any loss of clarity.
For a long time there have been moves to simplify legal language, and they gradually cause changes, but very unevenly. Your article is an example of this.
(As an aside, I once read that "kill" requires an animate subject. I immediately scribbled "Curiosity killed the cat"!)
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Note added at 49 mins (2006-07-17 11:33:00 GMT)
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I'm writing from a UK perspective. One area of difference is that the UK has recently tried to replace all Latin terms, whereas I don't think the US has.
Peer comment(s):
| agree |
writeaway
23 mins
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Thanks
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| agree |
Gareth McMillan
: Link reads like a load of sanctimonious bullshit.//US viewpoint? Now we're being extreme!
42 mins
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I think that's going a bit far - let's be charitable and say it's reflecting a US viewpoint!
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| agree |
jarry (X)
: I use the simple present tense whenever and wherever possible. I do use 'shall' for an obligations not to do something (e.g. the parties shall not allow access to the project ...)
44 mins
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This seems fine. You could put "must not" here, and it would sound less legalistic.
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| agree |
conejo
4 hrs
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| agree |
ErichEko ⟹⭐
: Yes, simplification is a must in legal documents. I heard that complexity of legal wordings was rooted back in Middle Ages where lawyers were paid by number of words, just like us translators today :|
15 hrs
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4 KudoZ points awarded for this answer.
Comment: "Thanks to you all for your answers--particularly David and JC. I agree with you, David, re. the use of shall for inanimate objects. You also make the good point that shall/will can be avoided altogether. Writeaway's comment re. the courts' interpretation of will is also a very valid point, in my opinion."
+1
8 mins
Hooray!
A preliminary skim through this document seems to suggest it is exactly the way I have always believed these should be used, and I am so glad to have 'official' confirmation of my own usage.
Peer comment(s):
| neutral |
writeaway
: technical specifications tend to use them very differently to other more general legal docs and this is a USA read on the whole thing. Not sure so I agree so wholeheartedly from a UK perspective.
30 mins
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Thanks, W/A! USA or not, it is exactly in line with my own empirical observations in the Uk too. But of course, legal is your field more than it is mine ! :-)
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| agree |
sergey (X)
: i've read that link with interest too... PS no doubt...
3 hrs
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Thanks, Sergey! Quite a find, and a recurring question, eh?
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+1
4 hrs
jccantrell
United States
United States
Native in English
&
English
United States
Was nicht ist, kann noch werden.
Native in: English (Variant: US)
Works in: German to English
Related KudoZ points
:
6
My 2 cents
I work with the US government and deal with their procurement contracts for satellites.
With that caveat, I must say that they have reduced the choices to just 'shall' and 'everything else.' In these contracts, 'shall' constitutes a requirement, that is something that the contractor must provide.
"The receiver shall have a dynamic range of 1000 db."
Any other verb, will, should, must, etc. is treated as a goal. If achieved, it may result in bonus payments, but if not achieved, there is no penalty.
"The receiver should have a dynamic range of 1005 db."
If a requirement is not achieved, there is usually some sort of penalty.
I realize that this ONLY applies to this small slice of the contracts arena, but that is my experience for the past 20 years.
That being said, I find that every time I have asked about this with a client (both directs and agencies), they unanimously tell me to stick closer to what the original language has.
With that caveat, I must say that they have reduced the choices to just 'shall' and 'everything else.' In these contracts, 'shall' constitutes a requirement, that is something that the contractor must provide.
"The receiver shall have a dynamic range of 1000 db."
Any other verb, will, should, must, etc. is treated as a goal. If achieved, it may result in bonus payments, but if not achieved, there is no penalty.
"The receiver should have a dynamic range of 1005 db."
If a requirement is not achieved, there is usually some sort of penalty.
I realize that this ONLY applies to this small slice of the contracts arena, but that is my experience for the past 20 years.
That being said, I find that every time I have asked about this with a client (both directs and agencies), they unanimously tell me to stick closer to what the original language has.
Peer comment(s):
| agree |
writeaway
: yes-if will starts to mean shall, lawyers will have a field day trying to convince judges to buy 'their interpretation'. the Texas text is not too impressive, imho. just adds confusion.
4 mins
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4 hrs
Comment from the dictionary
To quote Collins: "The usual rule given for the use of shall and will is that where themeaning is one of simple futurity, shall is used for the first person of the verb and will for the second and third: 'I shall go tomorrow'; 'They will be there now'. Where the meaning involves command, obligation or determination, the positions are reversed: 'It shall be done': I will definitely go. However, shall has come to be largely neglected in favour of will, which has become the commonest form of the future in all three persons."
Discussion