Attention English speaking lawyers: "will" or "shall"?

[Martinus]

I know this is a pretty basic question, but I am getting confused by different conventions on the use of "shall" vs. "will" in contracts.

My original position was that "shall" should be used in contracts to denote an obligation, whereas "will" should be used to denote simply an event happening in future. However, since then I have been told by several English speaking lawyers that these two are really synonymous and that "shall" is an archaic form and should not really be used in place of "will" in modern day English drafting. But then, other people still insist on writing "shall".

So what is it? Are there different conventions on this, or is one side simply wrong?

[The Brain]

This reminds me: better update my shall.

[Barrister]

I seriously doubt there is any serious caselaw on the differences between will and shall.

I would probably use "shall" myself, because it does seem like it connotes an obligation as you say.  But the other side is right - shall is incredibly archaic and not used in modern english outside of the law, so using "will" is going to sound a lot cleaner.

Really, I think it's an angels on a pin kind of issue and either is fine.

[DontSayBanana]

"Will" still implies an obligation, at least in English legalese; it implies an expectation, and in a contract, affirming that expectation by agreeing makes it an obligation.  As it was explained to me, "shall," along with even more archaic words like "wherefore," is losing ground in the US because of a growing number of "plain English" proponents among attorneys and judges.

[crazy canuck]

will = shall

will is preferable if you wish to use plain language in your drafting.

[Scipio]

I never see 'shall' used in contracts.  I never see 'will' used in statutes (unless they are referring to testamentary wills).

[BuddhaRhubarb]

Shall is far more Brit etc, not US English. people only use shall in North America when being sarcastic, making fun of furriners weird accents.

[crazy canuck]

I never see 'shall' used in contracts.  I never see 'will' used in statutes (unless they are referring to testamentary wills).

I still see it in contracts now and then.  But when I do its a sure tip off the other side is using an old precedent.

[HVC]

old precedent = copy 'n paste?

[crazy canuck]

old precedent = copy 'n paste?

I think its more like - start with old precedent and edit where required although they often miss all the bits that should be changed to update the contract.

[Martinus]

I just asked because I drafted a contract with "will" and a client's inhouse lawyer told me it should all be changed to "shall". He is a German, though.

[PDH]

This reminds me: better update my shall.

[ulmont]

My original position was that "shall" should be used in contracts to denote an obligation, whereas "will" should be used to denote simply an event happening in future. However, since then I have been told by several English speaking lawyers that these two are really synonymous and that "shall" is an archaic form and should not really be used in place of "will" in modern day English drafting. But then, other people still insist on writing "shall".

Here's two commentaries by Ken Adams - author of:
"A Manual of Style for Contract Drafting"
http://www.amazon.com/Manual-Style-Contract-Drafting-Kenneth/dp/1604420286/ref=sr_1_1?ie=UTF8&qid=1308072915&sr=8-1

I recommend that for purposes of business contracts you use "shall" only to impose an obligation on the subject of a sentence—in other words, to convey the meaning "has a duty to." Eliminating "shall" entirely has little to recommend it: replacing it with "must" would eliminate a useful distinction along with only negligible risks; lawyers find "must" unduly bossy; and "will" is even less promising as an alternative.

http://www.adamsdrafting.com/downloads/nylj-shall-101807.pdf

replacing shall with will (the most plausible candidate) would result in drafters using will to express both obligations and futurity. Use of one word to express different meanings is precisely what currently afflicts use of shall, so you'd in effect be replacing one form of overuse with another.

http://www.adamsdrafting.com/2008/11/18/shall-will-must-exchange-emails/

[Martinus]

old precedent = copy 'n paste?

It would be very inefficient to draft contracts from scratch. Most lawfirms use generic precedents/templates that have all typical clauses for a given type of contract (eg a share purchase agreement) in, and you substract/delete just as much as you add, if not more.

Since we are paid by an hour, it's also cheaper for the client and can often be done by more junior people (read: even more cheaply) than otherwise.

[Malthus]

My take is that it doesn't matter what you use (though "shall" is a bit more archaically legally-sounding) as long as your meaning is clear in context.