Must We Use Shall? Will We Hear A Death Knell?

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Language changes over time. There are words used today that were not in use when you were born. That can’t be denied. Our vocabulary is changing. So, why do some of us (this author certainly included) pretend that definitions and usage don’t? Ruminations is on the verge of throwing in the sponge (or towel) when it comes to the word: “shall.” We’re not talking the kind of verge that a bishop or dean might carry; we’re talking about the kind of edge or border one can look beyond.

The word: “shall” in infused in all of our leases, mortgages, other contracts, and other documents. What would we do without it? That, so to speak, is what today’s posting is all about.

Why now? Why is this staunch defender of the use of the word “shall” to connote “must” almost ready to throw in the sponge? Well – the sponge doesn’t seem to be able to hold all of the water that the “don’t use shall crowd” is pouring out. Given that language is “crowd-sourced,” this older generation writer thinks it might be time to join the crowd. “Not yet, but pretty soon.”

The most recent source of water filling out sponge comes from (what we think to be a wrong-headed) October 19 decision by a U.S. District Court in Pennsylvania. The opinion is HERE. In this case, a Recorder of Deeds sued MERS, claiming that “MERS … was formed for the express purpose of avoiding fees traditionally due to county recorders of deeds when sales or assignments of mortgages were made.” We’re not going to talk about the substantive issues such as whether assignments actually take place when the mortgages always remain in the name of MERS. That’s gasoline for a fire we have no chance of putting out. We’re only going to talk word usage; specifically, how the word shall was treated. The court decision in question was in response to a motion to dismiss the law suit. So, nothing is final.

The question reviewed by the court was whether Pennsylvania law requires mortgage assignments to be recorded. When looking at the following excerpt from that state’s law, focus on the TWO places where the word “shall” is used:

“All deeds, …, and other instruments of writing wherein it SHALL be the intention of the parties executing the same to grant, … any lands, … situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, SHALL be recorded in the office for the recording of deeds in the county where such lands … are situate… . Every such deed, … which shall not be acknowledged or proved and recorded … shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee… .”

According to the Court, this statute, by use of the word shall, makes recording mandatory. The Court called it a “statutory command.” MERS, on the other hand, didn’t see the word “shall,” used in this context, to be anything more than making recording an election, but if one chose to record a document, the statute told you where it was to be recorded. The Court characterized MERS argument as saying that “may be recorded” should be substituted for “shall be recorded.”

All fine and dandy, but what about where the first “shall” appears in the statute? Does this same court think it is mandatory that the parties intend to make the grant? Suppose the parties don’t intend to make an assignment of a mortgage, just to make a book entry as to who holds the beneficial interest, i.e., as to whom the nominal owner (MERS) must answer? “Shall” intend – what does shall mean in this context? On the other hand, MERS couldn’t have been arguing that “shall,” as used the second time, had a stand-alone meaning of “may.” MERS was arguing: “context.”

Bill Sabin, a favorite client, now deceased, in his widely-owned book on language style, The Gregg Reference Manual, published by The McGraw-Hill Companies, wrote the following: “The auxiliary verb shall has largely given way to the verb will in all but the most formal writing and speech.” Bill’s use of “formal,” however, isn’t a reference to “legal” usage. Apparently “formal” documents of the “legal” type have held onto a usage long since abandoned by “ordinary folk” and grammarians.

What’s the problem? When we were young, in legal documents, “shall” always had a sense of the imperative, along the lines of “must,” whereas “will” (in legal documents) seemed to speak only of the future. A fair characterization of today’s usage would be to say that the status of “shall” and “will” is muddled. And, if you are drafting document to be read today or decades from now, “muddled” is not good.

How did we get here? It may not be important, because we are in this state of confusion even if we don’t know how we got here. Each of shall and will can: (a) refer to a future time; (b) speak of “determination” or promise; or (c) speak of agreeability.

Here are examples of their use when connected to the future: (A) “We shall be in the city tomorrow”; and (B) “They will be in the city tomorrow.” Each has the same sense, and in “formal” language usage, that’s how “shall” and “will” are used. So, in the sense connected to the future, shall and will have the same meaning.

In non-legal, ordinary usage, when expressing the imperative (determination), we say: “I will not throw trash out the window” or “You will not throw trash out the window.” In non-legal, “formal” usage, when he, she, you or they is involved, one would write: “You shall not throw trash out the window.”

While we are at it, should and would follow the same rules as shall and will.

Ruminations promises that what we’ve written thus far is a pretty simple explanation of how these words under attack are commonly used outside of the world of legal documentation. The reason it might not seem so simple (or clear) is that we in the legal world, this writer certainly included, have been pretending that we can maintain the dike that keeps common usage from flooding into our sacred texts. Well folks, we’re (almost) ready to give up the fight.

Where does this take us? What we’re thinking is that the “old, traditional” legal use of the word shall might need rethinking. Replacing it with “will,” as some have started to do, isn’t going to solve the problem because “will” can also speak of a future time or agreeability. So, we’re thinking that it is time either to move to “must” or to go the definitional route as some documents do with the word “including.” It may be time to say: “Shall means that it is required. By way of example, when this Agreement says that a party shall do such and such, it means that the party must take that action.”

We at Ruminations are not quite ready to cross that line, but we see the light at the end of the tunnel and are afraid it may be a train barreling toward us. Shall we join hands down the path to clarity of meaning in our documents, or must we defend the practices of yore?

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Comments

  1. Hey Ira. Thanks for your updates. I have found them quite informative and useful. Along the lines of what you covered today regarding the use of “shall”. Can you also address the continued purpose and usefulness of the spelling out of numbers, i.e. Ten (10). I have taken to eliminating this from my documents. There were just too many occasions were I or my counter party made a numerical modification but neglected to change the spelled out reference to the number. I solely state my numbers in numerical terms now.

  2. Languages, especially English, have many words that are related in meaning (usually) with slight differences in nuance. I don’t think the word “shall” should be discarded; rather the proper word – as between “shall”, “must” “will” and “is” [yes] should be selected to convey the intended meaning. I think the Pennsylvania statute improperly used “shall” in too many places, creating the ambiguity you outlined, where other choices would have been more accurate. But words evolve out of a conceptual necessity; I don’t agree that they go out fashion (except when more archaic forms are replaced by newer ones).

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  3. Bryan A. Garner in his books discusses the problem with “shall” in A Dictionary of Modern Legal Usage and Garner on Language and Writing. In A Dictionary of Modern Legal Usage Garner says, “few lawyers have the semantic acuity to identify, correct and incorrect shalls, even after a few hours of study. That being so, there can hardly be much hope of profession’s using shall consistently.”

    In Garner on Language and Writing, Garner says this about shall, “This word runs afoul of several basic principles of good drafting. The first is that a word used repeatedly in a given context is presumed to bear the same meaning throughout. ….. The second principle is strongly allied with the first: when a word takes on too many senses, and cannot be confined to one sense, in a given document, it becomes useless to the drafter. …… The third principle has been recognized in the literature on legal drafting since the mid-19th century: good drafting generally ought to be in the present tense, not in the future.”

    With regard to the overuse problem Kenneth A. Adams in his A Manual of Style for Contract Drafting notes: “It sometimes seems as if drafters fear that a contract provision won’t be enforceable unless it features shall.”

    Adams believes that Garner wants to completely do away with shall. Adams believes that shall is still useful in drafting commercial contracts (but not consumer contracts) if it is restricted to meaning only “has a duty to.” Both Garner and Adams agree that shall should not be used in statues or court rules. There are substantially more recorded cases involving the meaning of shall in statutes than involving contracts. Generally, the issue in contract disputes is whether a shall provision is intended to be an obligation or a condition. A Manual of Style for Contract Drafting Page 35, Sections 2.42 and 2.43.

    Notwithstanding the wisdom of these two scholars, when in doubt, I will probably continue using shall.

    P.S. Thanks for your workshop at the ICSC Legal convention.

  4. John, I used to do the same thing with numbers, but I found that 95% of the time, opposing counsel would insert the spelled out numbers. The cynic in me thinks it is just because they wanted to have something to comment upon.

  5. Bob Small says:

    Ira, Thank you for your discussion and, please, continue to rage against the improper usage of words. The fine distinctions between the meanings of closely allied words is what gives us the ability to communicate clearly and yet with subtlty. In your example, “shall,” like many words, has different meanings and it is the context which determines the meaning. Frankly, I did not see this one as hard to call. Clearly, the first use of “shall” was not in its mandatory sense and the second was. Another common error is worngly using the closely allied: “can,” might,” and may” (respectively connoting: ability, possibility and permission). May I respectully point out your incorrect usage of “may” in your third to last paragraph, which should have been “might,”

    John, there is a very good reason why careful draftpersons use both the numeral and write out numbers. It is very easy to mistate a numeral, especially when more than one numeral is used in succession. Transposition of numerals is a common mistake. Writing out the number in words is intended to prevent creating an ambiguous legal instrument as the law is in every jurisdiction with which I am familiar is that the written word controls where there is a diffenence with the numeral. This was drafting 101 when I went to law school.

  6. Ira – (yes, the same name). I think the first “shall” should be “is” as an affirmative statement regarding an intent of creating a future condition.. The second “shall” is regarding an ordered action and more appropriately “shall”.

  7. I drank the “no-shall” kool-ade years ago when Bryan Garner gave a legal writing workshop at one of my former firms. My biggest problem with putting it into practice has been other attorneys (some older, some younger than I am) who insist on using “shall” because “That’s what we’ve always used. If we change it now, some judge may find that change significant.” (To which I usually mutter under my breath, “Yes, the judge may find that the meaning is clearer.”) I don’t think we’ve reached the tipping point yet where avoiding “shall” is generally accepted in the legal community.

  8. David DeRoberts says:

    If it ain’t broke, don’t fix it.

    Apart from “shall” and “may”, the most important words in drafting or statutory interpretation are “and” and “or”. Why complicate it?

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