The majority of today's leases, contracts and legal forms are riddled with the word shall. Shall is a word beloved by many, but it may be time to move away from shall. The use of shall can take parties down the long and arduous path of litigation. Even though shall has been used for generations as a word to create a mandatory obligation, the word actually contains layers of ambiguity. Shall can be interpreted to mean must, may, will or even should. In countless instances, shall is used throughout the same document, but with multiple interpretations.1
Consider this sentence: "The lease term shall commence on the commencement, which shall be the later of..." Now, replace shall with any of those other verbs mentioned above.
- Must: The lease term must commence on the commencement, which must be the later of…
- Will: The lease term will commence on the commencement, which will be the later of…
- May: The lease term may commence on the commencement, which may be the later of…
- Should: The lease term should commence on the commencement, which should be the later of…
- Hybrid: The lease term must commence on the commencement, which will be the later of…
In the sentence above, every time shall is substituted with must, will, may, should or a combination of the words, the sentence still makes sense, and it is impossible to determine which interpretation the author intended. Unless the reader is expressly told that shall will be interpreted as mandatory – rather than precatory, meaning that the drafter is simply making a recommendation or even a wish – it is ambiguous and can lead to litigation. In 1995, for instance, the U.S. Supreme Court issued a decision in Gutierrez de Martinez v. Lamagno that under certain contexts, shall could be construed as may.2 The decision does not imply that shall always means may, but rather that unless expressly defined, context determines whether shall is mandatory or precatory.3
Because the meaning of shall depends on context, even 25 years after the U.S. Supreme Court issued its decision, litigation continues to exist on what shall means. Through the years, many opinions have interpreted shall to mean must,4 while others have interpreted it to mean may or will.5 Continuing to use the word shall, especially if it is not clearly defined, will result in unnecessary litigation. In fact, canceling shall has already begun. The Federal Rules of Civil Procedure and The Federal Rules of Evidence, for example, revised their rules to delete all uses of the word shall to avoid ambiguity.6 The advisory notes explain that "the word shall can mean must, may, or something else, depending on context."7
Later, finding support in the federal rules, Congress also issued the Plain Writing Act of 2010 (the Act), which required all federal agencies to follow the federal plain language guidelines and use must instead of shall when imposing requirements.8 The federal plain language guidelines state that the word "must is the clearest way to convey to your audience that they have to do something."9 On the other hand, "shall can indicate either an obligation or a prediction."10 Now, to comply with the Act, multiple agencies have handbooks requiring the use of must instead of shall when imposing requirements.11 As with the federal government, transitioning from the word shall will enhance clarity in legal writings.
Despite the ambiguity of the word shall, the majority of agreements, contracts and legal forms continue to use the word shall. Instead, these documents should be drafted or revised to use must, may, will or should. Unfortunately, without knowledgeable legal guidance, eliminating shall altogether in existing documents and templates will require an examination of innumerable documents and a close analysis each time the word shall appears in a document to find the correct meaning and replace it with the appropriate word. Alternatively, global corrective language can be inserted in existing documents to require that all uses of the word shall are interpreted as imperative and not permissive.
1 Bryan Garner, Legal Writing in Plain English, at 125-128 (2001).
2 Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995).
3 See id.
4 See, e.g., Bryan Garner, Legal Writing in Plain English, at 125-128 (2001) (citing West Wis, Ry, v. Foley, 94 U.S. 100, 103 (1877); Gutierrez de Martinez v Lamagno, 515 U.S. 417, 434 (1877) (adding that "certain of the Federal Rules use the word 'shall' to authorize, but not require, judicial action," citing Fed. R. Civ. P. 16(e) and Fed. R. Crim. P. 11(b)).
5 See, e.g., Bryan Garner, Legal Writing in Plain English, at 125-128 (2001) (citing Railroad Co. v. Hetch, 95 U.S. 168, 170 (1877); Scott v. United States, 436 U.S. 128, 146 (1978) (Brennan, J., dissenting); United States v. Montalvo-Murillo, 495 U.S. 711, 712 (1990).
6 Fed. R. Evid. 1 advisory committee's note; Fed. R. Civ. P. 1 advisory committee's note ("The restyled rules minimize the use of inherently ambiguous words. For example, the word "shall" can mean "must," "may," or something else, depending on context. The potential for confusion is exacerbated by the fact that "shall" is no longer generally used in spoken or clearly written English. The restyled rules replace "shall" with "must," "may," or "should," depending on which one the context and established interpretation make correct in each rule.").
8 The Federal Plain Writing Act of 2010, Pub. L. 111–274 (2010).
9 The Plain Language Action and Information Network, Federal Plain Language Guidelines (May 2011).
11 Office of the Federal Register, Drafting Legal Documents, Principles of Clear Writing (Aug. 15, 2016), https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html; Federal Aviation Administration, FAA Writing Standards, Order No. 1000.36 (March 13, 2003).