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?
This reminds me: better update my shall.
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.
"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.
will = shall
will is preferable if you wish to use plain language in your drafting.
I never see 'shall' used in contracts. I never see 'will' used in statutes (unless they are referring to testamentary wills).
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.
Quote from: Scipio on June 14, 2011, 11:25:16 AM
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.
old precedent = copy 'n paste?
Quote from: HVC on June 14, 2011, 11:49:02 AM
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.
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.
Quote from: Martinus on June 14, 2011, 10:28:02 AM
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
QuoteI 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
Quotereplacing 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/
Quote from: HVC on June 14, 2011, 11:49:02 AM
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.
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.
Quote from: Malthus on June 14, 2011, 01:27:52 PM
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.
Yes, the two words are synonyms. But simply because it's archaic, "shall" sounds more formal and legalistic, which is why you see it still used.
But if the guy wanting the wording changed is German, Marty really needs a German lawyer to see it the two translate to different terms in Germany legalese.
Quote from: dps on June 14, 2011, 02:48:05 PMBut if the guy wanting the wording changed is German, Marty really needs a German lawyer to see it the two translate to different terms in Germany legalese.
From my very anecdotal knowledge, it seems that in German you would rather use the translation of "have to" to express obligations.
Or something is just stated as a fact like "The renter pays the rent to the landlord on the first workday of the month".
My gut feeling is using 'will' is definite, one will do something, whereas 'shall' seems less certain, one would say "I shall do this", but that usage leaves an element doubt as to you doing it, in a sense it implies you have the freewill to choose not to do it.
I think my opinion might be something to do with the origination and age of the two words; will seems to be older and more 'English'. :unsure:
Quote from: dps on June 14, 2011, 02:48:05 PMYes, the two words are synonyms. But simply because it's archaic, "shall" sounds more formal and legalistic, which is why you see it still used.
But if the guy wanting the wording changed is German, Marty really needs a German lawyer to see it the two translate to different terms in Germany legalese.
Well in Danish, which isn't German but might be similar, the equivalent of "will" ("vil) suggests that you have the will/ intention to do something, where as the equivalent of "shall" ("skal") means there is an obligation whether you feel like doing so or not.
I suspect that German has a similar distinction and that English used to but doesn't really anymore (outside of older legal language).
Quote from: Scipio on June 14, 2011, 11:25:16 AM
I never see 'shall' used in contracts. I never see 'will' used in statutes (unless they are referring to testamentary wills).
Ah, yeah, forgot about that. All the "plain English" mantra we were taught went out the window in Administration of Estates. Of course, NJ's so screwed up in its requirements for estates that it's best to just fall back on the tried-and-true legalese.